by Laurie Schwede

Major changes at the federal level regarding race, ethnicity, undocumented people and noncitizens may be of particular interest to SfAA members. One set of changes concerns already finalized major revisions in officially defining, measuring, and presenting data on race and ethnicity across all federal censuses and surveys, last revised more than two decades ago.    

The second set of major potential changes involves new, related bills in the House of Representatives and Senate that seek to remove undocumented people and other noncitizens from the future 2030 Census count for House apportionment for the first time in the nation’s history.

The first major official change is that the Office of Management and Budget (OMB) has now mandated that all federal agencies will be required to make specific changes in racial and ethnic classification and in data collection and presentation in federal censuses and surveys.  Some of the major changes include:  a combined race/ethnicity question (currently collected in separate questions), with a new “Mark all that apply” instruction; a new Middle Eastern/North African (MENA) category; changes to the American Indian/Alaska Native examples; and a requirement to collect more detailed race and ethnicity in each category. Additionally, the terminology and definitions of the race and ethnicity categories have been updated, guidance has been given on the wording of survey question stems and instructions as well as on tabulation, and next steps are summarized.

These major revisions will require statistical agencies to develop “crosswalks” or “bridges” between existing and future data collections to inform data users and policy makers of how to develop valid race and ethnicity comparisons using data from past and future data collections to identify changing trends over time.

For a more  in-depth summary of these changes, see “What Updates to OMB’s Race/Ethnicity Standards Mean for the Census Bureau” at https://www.census.gov/newsroom/blogs/random-samplings/2024/04/updates-race-ethnicity-standards.html?utm_campaign=20240408pio&utm_medium=email&utm_source=govdelivery

An overview of the significance of the OMB review process and these changes to the nation, as well as plans for engagement with the public and next steps is provided in the blog by Census Bureau Director Rob Santos, “Meeting Our Future: Improving Race/Ethnicity Data With Updated Federal Standards” at https://www.census.gov/newsroom/blogs/director/2024/04/improving-race-ethnicity-data.html

The full documentation of these official changes was published in the March 29, 2024 Office of Management and Budget Federal Register Notice, “Revisions to OMB’s Statistical Policy Directive 15:  Standards for Maintaining, Collecting, and Presenting Federal Data on Race and Ethnicity,” see https://www.federalregister.gov/documents/2024/03/29/2024-06469/revisions-to-ombs-statistical-policy-directive-no-15-standards-for-maintaining-collecting-and

The second major announcement is that comparable new bills in the House of Representatives and the Senate would mandate that:   

1) the Census Bureau would add a citizenship question on the 2030 Census form. 

2)  the Census Bureau and Commerce Department would exclude “illegal aliens” but also exclude all other types of noncitizens from all future censuses. 

These two bills are an attempt to revive major changes former President Trump tried, but was constrained from implementing, during the runup to the 2020 Census, to who was to be included in the census count after the deadline for such changes to the 2020 Census had already passed. All preceding censuses have included noncitizens in census counts used to apportion seats in the House of Representatives and to allocate funding among the states based on population. The former president tried to add a new citizenship question to the census form without clear justification after the strict deadline for finalizing the census form questions. In litigation, the Supreme Court disallowed this addition because it had not been done according to federal regulations. 

In response, the former President then mandated that the Census Bureau collect administrative records from other federal agencies on legal (citizenship) status, match people by name and legal status across those multiple lists, and compile one overall national list of legal status and counts of citizens and types of noncitizens. A year later, just five months before the final counts were mandated to be certified final at the end of 2020, he issued an Executive Order that the Census Bureau match people, by name, on that overall list of people by legal status (citizens and types of noncitizens) to the massive 2020 Census data file and then delete the “illegal aliens” from the 2020 Census for apportionment of seats in the House of Representatives. 

The Census Bureau followed through on this massive task but could not validate the completeness or accuracy of the matches and the counts of “illegal aliens” and other noncitizens. Just a few days before the final counts were mandated by law to be delivered, the Supreme Court took account of this and wrote the majority opinion that the case was premature: the appellants did not have standing and the case was not ripe for resolution. Three justices dissented and wrote their opinion that the case should have been resolved and that the effort to remove “aliens without lawful status” was unlawful.

Now in 2024, the lack of Supreme Court resolution has left the issue of excluding undocumented immigrants open for dispute in future censuses. The two new bills thus revive this issue and go beyond just excluding undocumented immigrants to exclude ALL noncitizens in future censuses.

These two bills, if passed, would likely lead to more litigation on whether they are constitutional. If allowed, the changes would constitute a break from the rules of who to include in the census from all preceding censuses and distort the allocation of seats in the House of Representatives. This could possibly lead to quite different final counts for apportionment versus total population, distortion of demographic data, and possible skewing in the allocation of federal funds among states and communities yearly over the 10 years between censuses.  

While these bills might pass the current House, they would be unlikely to pass in the current Senate or be signed by the current President. But that could change, based on the November election outcomes and possibly lead to more litigation. Other legislative bills may seek to maintain the current residence rules that include undocumented immigrants and other noncitizens in census counts for apportionment.

The first bill is the “Count Only Citizens Act” (H.R. 6942) introduced in the House of Representatives by Mr. Rosendale with 17 cosponsors, at https://www.congress.gov/bill/118th-congress/house-bill/6942/text?s=2&r=1&q=%7B%22search%22%3A%22%5C%22Count+Only+Citizens+Act%5C%22%22%7D

The second is the “Equal Representation Act” (S.3659) introduced by Senator Hagerty with 23 cosponsors, at https://www.congress.gov/bill/118th-congress/senate-bill/3659/text?s=1&r=9&q=%7B%22search%22%3A%22Census%22%7D

Laurie Schwede, career U.S. Census Bureau researcher, now retired  

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