The residence criteria part addresses a question that has vexed the Census Bureau since 1790: who counts as a person "in each State" for purposes of apportionment. The Constitution requires counting "the whole number of persons in each State," but it does not define "persons" or explain how to count someone who lives in multiple places or lives nowhere permanently.
The Census Bureau has changed its residence rules repeatedly. Before 1970, overseas Federal employees were not counted toward any state's apportionment. In 1970, during the Vietnam War, the agency began counting Armed Forces members stationed abroad toward their "home of record"—the state they listed when entering military service. In 1990, the Census Bureau extended this approach to all overseas Department of Defense employees. The Supreme Court upheld this discretion in Franklin v. Massachusetts (1992), ruling that "usual residence" can include "some element of allegiance or lasting tie to a place."
For the 2020 census, the agency applied this rule to foreign citizens: those "living in" the United States were counted at their U.S. residence; those "visiting" were not counted. Critically, the 2020 rule made no distinction between foreign citizens present legally and those present illegally. Several states have challenged this approach in court, arguing that illegal aliens should not be counted for apportionment. Congress has also introduced multiple bills on the subject, including the Equal Representation Act, the COUNT Act, and the Correct the Count Act.
The proposed rule does not specify what the new residence criteria will be. Instead, it proposes to codify the process by which the Census Bureau settles on residence rules for each decennial census. The document notes that residence criteria typically address college students, incarcerated individuals, overseas military personnel, and foreign citizens. The proposal cites historical arguments that the term "persons" in the Apportionment Clause was meant to refer to "inhabitants"—members of the body politic—rather than any individual physically present. At the Founding, an alien could not qualify as an inhabitant without establishing residence within a jurisdiction and intent to remain there indefinitely.
The second part of the proposal would establish "standards and restrictions" for demographic questions on the census short-form questionnaire and any other enumeration form. The Census Bureau states that these restrictions are intended to ensure the census remains "colorblind and should not be distorted in any way by questions about immaterial personal characteristics, such as race. The document does not specify which questions would be restricted or removed, only that standards will be established.
The agency frames both proposals as necessary to fulfill the Constitution's mandate and to "improve and protect the core decennial census data. The residence criteria proposal is meant to clarify a process that has evolved ad hoc over 236 years. The demographic questions proposal is meant to refocus the census on its constitutional purpose—apportionment—rather than on data collection for other federal programs.
To submit comments, go to https://www.regulations.gov and enter docket number USBC-2026-0628 in the search box. You can also mail comments to 4600 Silver Hill Road, Designation: ADDEMO/FRN, Washington, DC 20746. Comments must arrive by October 13, 2026. For more information, contact Daniel Sweeney, Deputy General Counsel for Economic, Statistical, and Regulatory Affairs, at (301) 996-3533.
General information, not legal, immigration or tax advice. Confirm the details with Commerce Department before you act.
