By Douglas V. Gibbs
In Article I of the U.S. Constitution, and again in the Fourteenth Amendment, when the document discusses apportionment, it states that “Indians not taxed” are exempt. In other words, Indians who are still subject to the jurisdiction of their tribes are not to be counted for the purpose of apportionment for the House of Representatives. They are subject to a foreign power, and are not subject to the full jurisdiction of the United States, even though technically they reside within the borders of the United States of America.
The lesson is that anyone who may be inside the national boundaries of the United States, but they are still subject to a foreign power, are not to be counted in the census towards how many representatives in Congress a state may receive.
In 2019, the U.S. Supreme Court’s ruling regarding Department of Commerce v. New York blocked the Trump administration’s addition of a citizenship question to the 2020 Census, finding the addition of the question in the manner it was being presented and how it would be enforced unconstitutional by a vote of 5-4. Note that the High Court did not say that asking about citizenship was inherently unconstitutional. The problem was, according to the court, the government did not supply a genuine and lawful justification for adding the question.
Now, in 2026, Trump’s administration has formulated a new rationale. They proposed a rule that would require the Census Bureau to count only U.S. citizens and green card holders for apportionment purposes in the 2030 Census. If implemented, and if it survives the inevitability of a storm of lawsuits from the progressive left, the rule would prevent illegal immigration from distorting the political map. The population-based districts and therefore the number of representatives each state receives (which also, incidentally, influences the Electoral College) would be based only upon the number of citizens and permanent residents in the districts, eliminating the sway of foreign influence and the impact of sanctuary jurisdictions, which has been diluting Americans’ voting power for decades.
The rule is based on a modification of the Census Bureau’s “residence criteria,” which changes the “foreigners living in” the U.S. rule to “only dual nationals or lawful permanent residents would be counted at their usual residence” for apportionment.
On a common sense platform, illegal aliens and other foreigners who are in the United States but are not permanent residents “are not true inhabitants, members of the body politic, or persons with a ‘usual residence’ in the United States due to their lack of a sufficient tie and allegiance.” On a constitutional platform, while they may reside inside the boundaries of the United States, they are subject to a foreign power and may not participate in influencing apportionment or elections due to the limitations in the United States Constitution.
During the fight over the SAVE America Act, the proposed rule marks the latest attempt to place our elections on a proper course, and eliminate foreign influence when it comes to the apportionment of representatives in the House of Representatives. This latest move reflects Trump’s experience dealing with the Supreme Court, and in particular after the case in 2019. During his first term President Trump sought to stop foreign influence by executive order or executive action, launching his opponents into advocacy against him with the claim that the President may not unilaterally exclude certain classes of non-citizens from the Census. So, now he’s pursuing his goals through regulation, and with the kinds of tweaks that ought to survive judicial scrutiny. While, as a constitutionalist, I do not necessarily support the kind of power the federal court system wields regarding this issue, the reality is that the avenue to get it to happen travels through the judiciary.
The proposed rule also contemplates potentially adding a question regarding a respondent’s “legal status.” I figure most respondents who are illegally in the country would not answer honestly, but then again wouldn’t answering in a deceptive manner be considered a criminal act? I don’t know the answer to that one, nor do I know if the Trump administration will prevail on this issue, but the truth is the Trump administration is in line with the Constitution and ought to continue to pursue their attempt to resolve the matters regarding apportionment and elections. In fact, I believe the future of our republic depends upon it.
— Political Pistachio Conservative News and Commentary
