An Army sergeant from Dayton has been stationed in Germany for two years. She has not slept in Ohio during that time. On Census Day, the Census Bureau still credits her to Ohio, and in Franklin v. Massachusetts (1992), the Supreme Court said that was fine. Overseas federal employees are assigned to the state that was their usual home, not to the base where they happen to be sleeping. A German tourist standing outside the Ohio Statehouse that same morning is physically in Columbus. Nobody thinks Ohio has earned an extra sliver of a congressman on his account. Presence and belonging come apart. Every census since 1790 has had to pick which one it is counting.
Last month, the Commerce Department published a proposed rule, signed by Secretary Howard Lutnick, rewriting the residence criteria. Proposed section 60.4 would count foreign citizens who also hold US citizenship or a green card, and it marks everyone else holding only foreign citizenship as “Not counted for apportionment.” The rule’s own phrase for the line it draws is “durable permission from the sovereign to settle within the United States.” Aliens whose status is less durable, and less definite in length, than lawful permanent residence fall on the excluded side of that line, along with people here in violation of federal law. Under the proposal, usual residence is the place a person has lawfully spent the most days, as shown by tax records. Comments close October 13, on docket USBC-2026-0628. This is a proposal, not a finished policy. The administration put it through notice and comment in the open, years before the count, rather than issuing a memo in the middle of a census, as Trump attempted in 2020. A 2026 comment file will be the record a court has if the 2030 count is challenged.
The House is fixed at 435 seats, a ceiling Congress set in 1929 and has not lifted. Apportionment hands out a finite stock of national power, and every seat one state gains comes out of another state’s hide, including electoral votes. The same population base feeds both, so a transferred seat also transfers an elector. A state that grows through settlement federal law forbids does not simply take on more people to govern. Its voters acquire more say over the laws that bind citizens in Pennsylvania and Wisconsin. The concern does not require a single noncitizen to cast a ballot. The bend runs through the population formula. Every ballot in those states can be lawful, and power can still be misallocated.
Hans von Spakovsky of the Heritage Foundation has argued for years that apportionment should track allegiance as well as residence. A foreign national living here has enforceable rights, uses public services, and answers to American law. None of that hands the state where he lives extra authority over citizens in other states. A Canadian tourist has due process rights in Buffalo and still does not count toward New York’s delegation. If unlawful settlement earns seats, a state that shrugs at enforcement is paid in power at its neighbors’ expense. California’s gain in the CIS model rewards presence when the formula runs, and Texas collecting the same reward does not make the payment any less odd. Enforcement and representation then pull in opposite directions, and the state with the loosest practice holds the larger share of a fixed House.
The first Census Act in 1790 counted “inhabitants” by their usual place of abode, not everyone standing in a county on the appointed day. Soldiers and federal employees abroad were assigned back to that abode, a practice Franklin later described when it kept the sergeant on Ohio’s roll. The founders read Emer de Vattel, whose Law of Nations described inhabitants, as distinct from citizens, as foreigners “permitted to settle and stay in the country.” A sovereign that admits a family to settle has invited that family into the community it governs. A sovereign that forbids settlement has issued no such invitation. Permission was in the word before it was in any modern statute.
Section 2 of the Fourteenth Amendment apportions representatives by “the whole number of persons in each State,” excluding only “Indians not taxed,” and the same amendment uses “citizens” when it means citizens. The Reconstruction Congress considered basing representation on voters or citizens and rejected the idea, as the Court recounted in Evenwel v. Abbott (2016), which unanimously upheld Texas’s use of total population and said that representatives “serve all residents, not just those eligible or registered to vote.” Plyler v. Doe (1982) added that, under traditional rules, unlawful entry does not prevent someone from acquiring a domicile. A man who has painted houses in Houston for 20 years, coached his son’s soccer team, and paid sales tax on every gallon of paint is an inhabitant of Texas in any ordinary sense of the word. The amendment’s choice of “persons” over “citizens,” after Congress considered the citizens option and set it down, is the hardest sentence on that side of the brief.
“Whole number” still has to name a population. It cannot mean everyone physically present, or the tourist in Columbus would count, and Franklin itself described residence as involving “some element of allegiance or enduring tie to a place.” The 19th century did count resident aliens. The framers of 1868 wrote before Congress had built a general system of federal immigration restriction, so they had little occasion to decide whether settlement the nation forbids should earn representation. Resident aliens in 1870 were people the existing law had not barred. Unauthorized residents in 2030 are people a later Congress has barred. That gap is a historical argument. It is not a holding. In Trump v. New York (2020), the Court dismissed the challenge on standing and ripeness and said plainly, “We express no view on the merits.” Six justices did not bless the policy. They did not condemn it either.
When the Court blocked the citizenship question in Department of Commerce v. New York, Chief Justice Roberts wrote, “We do not hold that the agency decision here was substantively invalid.” The problem was a Voting Rights Act rationale that did not match the real decisionmaking. Candor is the usable part of that opinion. The rule should say what it is for, aligning apportionment with lawful political settlement, and then defend that goal on the merits instead of dressing it up as technical housekeeping. A court handed a pretext has already been given its grounds.
The current draft is broader than the theory it borrows. A refugee resettled in Minneapolis by the federal government, or an asylee waiting on a green card the statute promises, has received the permission the rule’s own phrase prizes. So has a doctor on a work visa who has lived in Toledo for six years. Excluding them drags the rule toward a citizens-only position that is harder to defend in court, because the sovereign act the theory cares about has already happened in each of those cases. A narrower, openly prospective rule would exclude people whose settlement federal law has not authorized, keep everyone the nation has invited, and leave the tourists out as they already are. It should link individual census responses to reliable administrative records rather than subtracting a statewide survey estimate, which runs into the statutory ban on sampling for apportionment. A parent’s status should not erase a citizen child. Confidential census answers should not become a deportation list. The Bureau should preserve the full enumeration and alternative tabulations, so a court that rejects one exclusion can sever it without wrecking the count. Breadth is the part a hostile panel will cut first, and it takes the rest with it if the tabulations are not already split.
In April 2025 I made the case for counting only citizens, on consent grounds. In August 2025 I argued for lawful-resident apportionment and asked Congress to authorize a new census. I still think the citizen principle is the better democratic theory, and I’m definitely less sure the 1868 text delivers it without help. If the courts conclude that the 20-year Houston painter is one of the “persons” Section 2 commands the government to count, then Congress cannot legislate him out, since City of Boerne v. Flores (1997) says enforcement power does not include rewriting the Constitution, and at that point the honest path is an amendment rather than another round of executive cleverness that a future Democrat administration will simply reverse the week it takes office, which is exactly what Biden did to Trump’s 2020 memo on his first day. Trump’s term also ends before the 2030 count is apportioned in 2031, so durability depends on Congress and on whoever sits in the Oval Office next, and a rule that cannot survive a change of administration is a press release with a docket number.
The narrow version can be won on a record. The broad version has to be put before the people who can ratify it, which is a different job and a slower one. If national power should rest on a relationship the nation has consented to, file a comment on docket USBC-2026-0628 before October 13, and call your member of Congress about a residence statute and an amendment. A seat in Congress is a share of the country’s power. The country ought to be asked before anyone gets one.
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Alexander Muse is a Fellow at the John Milton Freedom Foundation and publishes daily political analysis at amuseonx.com. Primary sources cited in this piece are linked inline; campaign finance figures are drawn from FEC filings, polling data from publicly released crosstabs, and legal claims from filed pleadings. Corrections are posted to the original URL with a dated changelog. Readers who identify errors are invited to contact the author directly. Each op-ed edited for grammar and clarity using Ai in partnership with Grammarly. Data provided in a sponsored partnership with Polymarket.
I've lived in South America for 20 years but my last US residence was NYC so I vote in the NY 9th district.
In my simple military mind, and simple Simon says: Only American citizens should be counted in any census, and certainly ONLY they are authorized to VOTE! As was said in my long ago military days, “Don’t confuse the Private with complicated instructions!”