Less than a week after President Trump said he has ordered a "new" census," the cabinet official who oversees the Census Bureau acknowledged Tuesday that Congress, not the president, has final say over the national head count that's used to reshape election maps and guide federal funding, NPR has exclusively learned.
Speaking at a town-hall event for the bureau's employees, Commerce Secretary Howard Lutnick also suggested that when tallying the country's population, the census should differentiate people living in the U.S. without legal status from other residents, according to three Census Bureau employees, who asked NPR not to name them because they fear retaliation.
Lutnick said if a person has "broken into the country," they need to be counted in the census, but they should be counted as someone who has "broken into the country," the three employees confirmed to NPR.
Lutnick's remarks come amid a Republican-led campaign to use census data to redraw congressional voting maps in Texas and other states ahead of next year's midterm election in an attempt to maintain GOP control of the House of Representatives.
Amid this rare mid-decade redistricting push, Trump, Republican Florida Gov. Ron DeSantis and some GOP lawmakers in Congress have floated conducting a census before the next scheduled count in 2030 so that new results can be used to redistribute House seats among the states and redraw maps of congressional voting districts — all before the 2026 election.
Lutnick acknowledged legal hurdles facing any census before 2030
Given the short timeline, census experts have dismissed the idea of a 2025 or 2026 census as practically impossible. It usually takes the bureau more than a decade to prepare a count, and planning for the upcoming 2030 census began six years ago.
Lutnick's comments on Tuesday mark the first known acknowledgement by a top Trump administration official of the potential legal hurdles facing any attempt to carry out the president's census call.
The remarks also appear to reference Trump's Aug. 7 social media post calling for the U.S. census to, for the first time in the country's history, exclude people without legal status.
The 14th Amendment requires the "whole number of persons in each state" to be counted in the 2030 census apportionment numbers, which are set to be used to determine each state's new share of House seats and Electoral College votes.
Testifying before Congress, Lutnick has faced questions from lawmakers about his position on who should be counted in the census. During his Senate confirmation hearing in February, Lutnick told Democratic Sen. Brian Schatz of Hawaii: "Since the first sentence of the 14th Amendment of that clause says we will count each whole person, I promise you we will count each whole person. That's what the Constitution says. And we will stick right to it rigorously."
But asked in June by Republican Rep. Dale Strong of Alabama about his thoughts on "consistency from state to state not allowing non-U.S. citizens to be counted" in the census, Lutnick said: "Consistency makes sense."
Some Republicans are still pushing for a census before the 2026 midterms
Article I of the Constitution gives Congress the authority to carry out a national tally "in such Manner as they shall by Law direct." In Title 13 of the U.S. Code, Congress directed the commerce secretary to follow a once-a-decade census schedule. That federal law also allows for a mid-decade census in 2025, but it can't be used to redistribute House seats and a legal deadline to prepare for such a count has already passed.
Still, Trump said in the social media post that he instructed the Commerce Department to "immediately begin work" on a "new" census that excludes people living in the states without legal status. Trump has not clarified whether his post was referring to the 2030 census or an earlier one.
Hours after Trump's census call, the Commerce Department said in a statement that the Census Bureau "will immediately adopt modern technology tools for use in the Census to better understand our robust Census data" and "accurately analyze the data to reflect the number of legal residents in the United States."
The department replied with that same statement when asked by NPR on Tuesday whether Lutnick has communicated to the White House his position on Congress' authority over the census and whether the commerce secretary plans to propose adding a census question about a person's immigration status, which the bureau has yet to test.
The press offices for the Census Bureau, which is part of the Commerce Department, and the White House did not immediately respond to NPR's inquiries.
Trump has publicly backed a proposal by Republican Rep. Marjorie Taylor Greene of Georgia to change current federal law and allow for a new census, redistribution of House seats and a new round of congressional redistricting before the 2026 midterm election.
Greene's bill also calls for excluding not only people without legal status, but all people living in the states without U.S. citizenship, such as green card holders, from what the 14th Amendment requires to be the "whole number of persons in each state."
Last week, Republican Rep. Randy Fine of Florida, introduced a similar proposal. Together, both bills currently have less than a handful of sponsors and are stuck in committee.
On Monday, another Republican official from Florida weighed in on the census with a letter to Lutnick referencing Trump's "recent census directive" by social media post.
Florida's state Attorney General James Uthmeier — a former Trump administration official who helped come up with a failed plan to exclude people without legal status from the 2020 census apportionment numbers — made two proposals.
Uthmeier suggested states get new shares of House seats before the 2026 midterm election based on a census "recount" in areas of states that the Census Bureau estimates it over- or undercounted in 2020. He also proposed "correcting" the census data used to guide trillions in federal funding for public services in communities with those miscounting estimates. The bureau's researchers and an internal watchdog have raised concerns about the usability of those estimates.
"We are energized by President Trump's leadership," Uthmeier wrote, "and we look forward to hearing from you and working together to resolve these issues."
Edited by Megan Pratz
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