then in the determination of such eligibility or amount of benefits the most recent data available from either the mid-decade or decennial census shall be used.
13 U.S.C. § 141
HISTORICAL AND REVISION NOTESBased on title 13, U.S.C., 1952 ed., §201 (June 18, 1929, ch. 28, §1, 46 Stat. 21; May 17, 1932, ch. 190, 47 Stat. 158).References to the Secretary, meaning the Secretary of Commerce, were substituted for references to the Director of the Census, to conform with 1950 Reorganization Plan No. 5, §§1, 2, eff. May 24, 1950, 15 F.R. 3174, 64 Stat. 1263. See Revision Note to section of this title.The provision for taking the censuses in "1930 and every ten years thereafter" was changed to "1960 and every ten years thereafter" since the censuses for the years 1930, 1940 and 1950 have been completed.The requirement that decennial censuses of "distribution" and "mines" should also be taken was omitted as superseded by section 121 of title 13, U.S.C., 1952 ed. (enacted in 1948), the provisions of which were carried into subchapter I of this chapter.Section of title 42, U.S.C., 1952 ed., the Public Health and Welfare (which section has been transferred in its entirety to this revised title), made all provisions of chapter 4 of title 13, U.S.C., 1952 ed., applicable to the housing censuses provided for in such section. However, section 201 of such title 13 (which section was a part of such chapter 4), which, as indicated above, has been carried into this revised section, could not, except, possibly, for the provisions thereof relating to the territorial scope of the censuses and to the census duties of the governors of Guam, Samoa, the Virgin Islands, and the Canal Zone, have any relevancy to such housing censuses, and such section of title 42, U.S.C., 1952 ed., contained its own provisions relating to territorial scope of the housing censuses. Therefore the provisions of this revised section have not been made so applicable.Changes were made in phraseology.
AMENDMENTS1976- Pub. L. 94-521 substituted "Population and other census information" for "Population, unemployment, and housing" in section catchline, without reference to amendment of catchline by Pub. L. 94-171.Subsec. (a). Pub. L. 94-521 substituted "1980" for "1960" and "decennial census of population" for "census of population, unemployment, and housing (including utilities and equipment)", inserted "of such year" after "April", substituted "which date shall be known as the decennial census date" for "which shall be known as the census date", and inserted provisions authorizing the Secretary to take the decennial census in whatever form and content he determines, using sampling procedures and special surveys, and authorizing him to obtain other such census information as is necessary, in connection with the decennial census.Subsec. (b). Pub. L. 94-521 inserted "under subsection (a) of this section" after "population by States", inserted "in Congress among the several States" after "Representatives", and substituted "9 months after the census date" for "eight months of the census date".Subsec. (c). Pub. L. 94-521 substituted "the decennial census date" for "the census date" wherever appearing.Subsecs. (d) to (g). Pub. L. 94-521 added subsecs. (d) to (g).1975- Pub. L. 94-171, §2(a), inserted "; tabulation for legislative apportionment" in section catchline.Subsec. (c). Pub. L. 94-171, §1, added subsec. (c).1957- Pub. L. 85-207 substituted "Population, unemployment, and housing" for "Population, agriculture, irrigation, drainage, and unemployment; territory excluded" in section catchline; inserted in text housing census provisions, struck out census coverage of agriculture, irrigation, and drainage and geographical provisions, and designated existing provisions as so amended as subsec. (a); and added subsec. (b). Census of agriculture, irrigation, and drainage and the geographical provisions are covered by sections and of this title.
STATUTORY NOTES AND RELATED SUBSIDIARIES
EFFECTIVE DATE OF 1976 AMENDMENTAmendment by Pub. L. 94-521 effective Oct. 17, 1976, see section 17 of Pub. L. 94-521 set out as a note under sectionof this title.
STATISTICAL SAMPLING OR ADJUSTMENT IN DECENNIAL ENUMERATION OF POPULATION Pub. L. 105-119, title II, §209, Nov. 26, 1997, 111 Stat. 2480, provided that:"(a) Congress finds that-"(1) it is the constitutional duty of the Congress to ensure that the decennial enumeration of the population is conducted in a manner consistent with the Constitution and laws of the United States;"(2) the sole constitutional purpose of the decennial enumeration of the population is the apportionment of Representatives in Congress among the several States;"(3) section 2 of the 14th article of amendment to the Constitution clearly states that Representatives are to be 'apportioned among the several States according to their respective numbers, counting the whole number of persons in each State';"(4) article I, section 2, clause 3 of the Constitution clearly requires an 'actual Enumeration' of the population, and section Secretary shall, if he considers it feasible, authorize the use of the statistical method known as "sampling" in carrying out the provisions of this title.';"(5) the decennial enumeration of the population is one of the most critical constitutional functions our Federal Government performs;"(6) it is essential that the decennial enumeration of the population be as accurate as possible, consistent with the Constitution and laws of the United States;"(7) the use of statistical sampling or statistical adjustment in conjunction with an actual enumeration to carry out the census with respect to any segment of the population poses the risk of an inaccurate, invalid, and unconstitutional census;"(8) the decennial enumeration of the population is a complex and vast undertaking, and if such enumeration is conducted in a manner that does not comply with the requirements of the Constitution or laws of the United States, it would be impracticable for the States to obtain, and the courts of the United States to provide, meaningful relief after such enumeration has been conducted; and"(9) Congress is committed to providing the level of funding that is required to perform the entire range of constitutional census activities, with a particular emphasis on accurately enumerating all individuals who have historically been undercounted, and toward this end, Congress expects-"(A) aggressive and innovative promotion and outreach campaigns in hard-to-count communities;"(B) the hiring of enumerators from within those communities;"(C) continued cooperation with local government on address list development; and"(D) maximized census employment opportunities for individuals seeking to make the transition from welfare to work."(b) Any person aggrieved by the use of any statistical method in violation of the Constitution or any provision of law (other than this Act [see Tables for classification]), in connection with the 2000 or any later decennial census, to determine the population for purposes of the apportionment or redistricting of Members in Congress, may in a civil action obtain declaratory, injunctive, and any other appropriate relief against the use of such method."(c) For purposes of this section-"(1) the use of any statistical method as part of a dress rehearsal or other simulation of a census in preparation for the use of such method, in a decennial census, to determine the population for purposes of the apportionment or redistricting of Members in Congress shall be considered the use of such method in connection with that census; and"(2) the report ordered by title VIII of Public Law 105-18 [111 Stat. 217] and the Census 2000 Operational Plan shall be deemed to constitute final agency action regarding the use of statistical methods in the 2000 decennial census, thus making the question of their use in such census sufficiently concrete and final to now be reviewable in a judicial proceeding."(d) For purposes of this section, an aggrieved person (described in subsection (b)) includes-"(1) any resident of a State whose congressional representation or district could be changed as a result of the use of a statistical method challenged in the civil action;"(2) any Representative or Senator in Congress; and"(3) either House of Congress."(e)(1) Any action brought under this section shall be heard and determined by a district court of three judges in accordance with section 2284 of title 28, United States Code. The chief judge of the United States court of appeals for each circuit shall, to the extent practicable and consistent with the avoidance of unnecessary delay, consolidate, for all purposes, in one district court within that circuit, all actions pending in that circuit under this section. Any party to an action under this section shall be precluded from seeking any consolidation of that action other than is provided in this paragraph. In selecting the district court in which to consolidate such actions, the chief judge shall consider the convenience of the parties and witnesses and efficient conduct of such actions. Any final order or injunction of a United States district court that is issued pursuant to an action brought under this section shall be reviewable by appeal directly to the Supreme Court of the United States. Any such appeal shall be taken by a notice of appeal filed within 10 days after such order is entered; and the jurisdictional statement shall be filed within 30 days after such order is entered. No stay of an order issued pursuant to an action brought under this section may be issued by a single Justice of the Supreme Court."(2) It shall be the duty of a United States district court hearing an action brought under this section and the Supreme Court of the United States to advance on the docket and to expedite to the greatest possible extent the disposition of any such matter."(f) Any agency or entity within the executive branch having authority with respect to the carrying out of a decennial census may in a civil action obtain a declaratory judgment respecting whether or not the use of a statistical method, in connection with such census, to determine the population for the purposes of the apportionment or redistricting of Members in Congress is forbidden by the Constitution and laws of the United States."(g) The Speaker of the House of Representatives or the Speaker's designee or designees may commence or join in a civil action, for and on behalf of the House of Representatives, under any applicable law, to prevent the use of any statistical method, in connection with the decennial census, to determine the population for purposes of the apportionment or redistricting of Members in Congress. It shall be the duty of the Office of the General Counsel of the House of Representatives to represent the House in such civil action, according to the directions of the Speaker. The Office of the General Counsel of the House of Representatives may employ the services of outside counsel and other experts for this purpose."(h) For purposes of this section and section 210 [formerly set out below]-"(1) the term 'statistical method' means an activity related to the design, planning, testing, or implementation of the use of representative sampling, or any other statistical procedure, including statistical adjustment, to add or subtract counts to or from the enumeration of the population as a result of statistical inference; and"(2) the term 'census' or 'decennial census' means a decennial enumeration of the population."(i) Nothing in this Act shall be construed to authorize the use of any statistical method, in connection with a decennial census, for the apportionment or redistricting of Members in Congress."(j) Sufficient funds appropriated under this Act or under any other Act for purposes of the 2000 decennial census shall be used by the Bureau of the Census to plan, test, and become prepared to implement a 2000 decennial census, without using statistical methods, which shall result in the percentage of the total population actually enumerated being as close to 100 percent as possible. In both the 2000 decennial census, and any dress rehearsal or other simulation made in preparation for the 2000 decennial census, the number of persons enumerated without using statistical methods must be publicly available for all levels of census geography which are being released by the Bureau of the Census for: (1) all data releases before January 1, 2001; (2) the data contained in the 2000 decennial census Public Law 94-171[amending this section] data file released for use in redistricting; (3) the Summary Tabulation File One (STF-1) for the 2000 decennial census; and (4) the official populations of the States transmitted from the Secretary of Commerce through the President to the Clerk of the House used to reapportion the districts of the House among the States as a result of the 2000 decennial census. Simultaneously with any other release or reporting of any of the information described in the preceding sentence through other means, such information shall be made available to the public on the Internet. These files of the Bureau of the Census shall be available concurrently to the release of the original files to the same recipients, on identical media, and at a comparable price. They shall contain the number of persons enumerated without using statistical methods and any additions or subtractions thereto. These files shall be based on data gathered and generated by the Bureau of the Census in its official capacity."(k) This section shall apply in fiscal year 1998 and succeeding fiscal years."of title 13, United States Code, clearly provides 'Except for the determination of population for purposes of apportionment of Representatives in Congress among the several States, the
CENSUS MONITORING BOARD Pub. L. 105-119, title II, §210(a)-(j), Nov. 26, 1997, 111 Stat. 2483-2487, established the Census Monitoring Board to observe and monitor all aspects of the preparation and implementation of the 2000 decennial census, described the membership and duties of the Board, and provided for its termination on Sept. 30, 2001.
CENSUS DATA ON GRANDPARENTS AS PRIMARY CAREGIVERS FOR THEIR GRANDCHILDREN Pub. L. 104-193, title I, §105, Aug. 22, 1996, 110 Stat. 2163, provided that:"(a) IN GENERAL.-Not later than 90 days after the date of the enactment of this Act [Aug. 22, 1996], the Secretary of Commerce, in carrying out section 141 of title 13, United States Code, shall expand the data collection efforts of the Bureau of the Census (in this section referred to as the 'Bureau') to enable the Bureau to collect statistically significant data, in connection with its decennial census and its mid-decade census, concerning the growing trend of grandparents who are the primary caregivers for their grandchildren."(b) EXPANDED CENSUS QUESTION.-In carrying out subsection (a), the Secretary of Commerce shall expand the Bureau's census question that details households which include both grandparents and their grandchildren. The expanded question shall be formulated to distinguish between the following households:"(1) A household in which a grandparent temporarily provides a home for a grandchild for a period of weeks or months during periods of parental distress."(2) A household in which a grandparent provides a home for a grandchild and serves as the primary caregiver for the grandchild."
DECENNIAL CENSUS IMPROVEMENT ACT OF 1991 Pub. L. 102-135, 105 Stat. 635, known as the Decennial Census Improvement Act of 1991, provided that the Secretary of Commerce was to contract with the National Academy of Sciences for a study of the means by which the Government could achieve the most accurate population count possible and ways for the Government to collect other demographic and housing data, and that the Academy was to submit to the Secretary and to committees of Congress an interim report and, within 36 months after the date of the contract, a final report on the study.
STUDY OF COUNTING OF HOMELESS FOR NATIONAL CENSUS Pub. L. 101-645, title IV, §402, Nov. 29, 1990, 104 Stat. 4723, provided that not later than 1 year after Nov. 29, 1990, the General Accounting Office was to conduct a study of the methodology and procedures used by the Bureau of the Census in counting the number of homeless persons for the most recent decennial census conducted pursuant to this title, to determine the accuracy of such count, and report to the Congress the results of that study.
MONITORING ECONOMIC PROGRESS OF RURAL AMERICA Pub. L. 101-624, title XXIII, §23822382,, 104 Stat. 4050, provided that Director of Bureau of the Census was to expand data collection efforts of Bureau to enable it to collect statistically significant data concerning changing economic condition of rural counties and communities in United States, including data on rural employment, poverty, income, and other information concerning rural labor force, and authorized to be appropriated $1,000,000 for each fiscal year for such efforts, prior to repeal by Pub. L. 104-127, title VII, §707, Apr. 4, 1996, 110 Stat. 1112.
AMERICANS OF SPANISH ORIGIN OR DESCENT; STUDY FOR DEVELOPMENT OF CREDITABLE ESTIMATES IN FUTURE CENSUSESPub. L. 94-311, §4, June 16, 1976, 90 Stat. 688, provided that: "The Department of Commerce, in cooperation with appropriate Federal, State and local agencies and various population study groups and experts, shall immediately undertake a study to determine what steps would be necessary for developing creditable estimates of undercounts of Americans of Spanish origin or descent in future censuses."
NEEDS AND CONCERNS OF SPANISH-ORIGIN POPULATION; USE OF SPANISH LANGUAGE QUESTIONNAIRES AND BILINGUAL ENUMERATORSPub. L. 94-311, §5, June 16, 1976, 90 Stat. 689, provided that: "The Secretary of Commerce shall ensure that, in the Bureau of the Census data-collection activities, the needs and concerns of the Spanish-origin population are given full recognition through the use of Spanish language questionnaires, bilingual enumerators, and other such methods as deemed appropriate by the Secretary."
EXECUTIVE ORDER NO. 13880Ex. Ord. No. 13880, July 11, 2019, 84 F.R. 33821, which directed Federal agencies to assist the Department of Commerce in determining the number of citizens, non-citizens, and illegal aliens in the country for purposes of the 2020 census, was revoked by Ex. Ord. 13986, §5, Jan. 20, 2021, 86 F.R. 7016, set out below.
EX. ORD. NO. 13986. ENSURING A LAWFUL AND ACCURATE ENUMERATION AND APPORTIONMENT PURSUANT TO THE DECENNIAL CENSUSEx. Ord. No. 13986, Jan. 20, 2021, 86 F.R. 7015, provided:By the authority vested in me as President by the Constitution and the laws of the United States of America, it is hereby ordered:SECTION 1. Background. We have long guaranteed all of the Nation's inhabitants representation in the House of Representatives. This tradition is foundational to our representative democracy, for our elected representatives have a responsibility to represent the interests of all people residing in the United States and affected by our laws. This tradition also respects the dignity and humanity of every person. Accordingly, the executive branch has always determined the population of each State, for purposes of congressional representation, without regard to whether its residents are in lawful immigration status.The census and apportionment processes are enshrined in the Constitution. The Fourteenth Amendment apportions seats in the House of Representatives "among the several States according to their respective numbers, counting the whole number of persons in each State." (U.S. Const. amend. XIV, sec. 2.) Article I, in turn, provides that, in order to determine those numbers, an "actual Enumeration" of the population of the United States must be conducted every 10 years. (U.S. Const. art. I, sec. 2, cl. 3.) The Congress has assigned responsibility for conducting the decennial census to the Secretary of Commerce (Secretary). (13 U.S.C. 141(a).)Once the Secretary, through the Director of the U.S. Census Bureau, takes the count, the President must carry out the apportionment of Representatives among the States. The Secretary prepares the "tabulation of total population by States . . . as required for the apportionment of Representatives," and reports that tabulation to the President. (13 U.S.C. 141(b).) The President then sends a statement to the Congress showing "the whole number of persons in each State," as ascertained under the census, and "the number of Representatives to which each State would be entitled under" the equal proportions apportionment method. ( .) The Clerk of the House of Representatives then transmits to each State a certification of the number of seats that the State receives under that apportionment. ( .) Finally, within 1 year of the decennial census date, the Secretary must also report to the Governor and officers or public bodies having responsibility for legislative apportionment or districting of each State the population tabulations to be used for apportioning districts within that State. (13 U.S.C. 141(c).)At no point since our Nation's Founding has a person's immigration status alone served as a basis for excluding that person from the total population count used in apportionment. Before the Civil War and the abolition of slavery, the Constitution did not give equal weight to every person counted under the census. (U.S. Const. art. 1, sec. 2.) In accord with constitutional and statutory requirements, however, every apportionment since ratification of the Fourteenth Amendment has calculated each State's share of Representatives based on "the whole number of persons in each State," excluding only "Indians not taxed"-an express constitutional exception that no longer has legal or practical effect. (U.S. Const. amend. XIV, sec. 2; .) The term "persons in each State" has always been understood to include every person whose usual place of residence was in that State as of the designated census date. (See, e.g., Act of Mar. 1, 1790, ch. 2, secs. 1, 5, 1 Stat. 101, 103; Franklin v. Massachusetts, 505 U.S. 788, 804 (1992).) This unbroken practice has ensured that "the basis of representation in the House" is "every individual of the community at large." (Evenwel v. Abbott, 136 S. Ct. 1120, 1127 (2016) (emphasis and quotation marks omitted).) And it reflects a sound policy judgment that the apportionment base be both clear and insulated against manipulation designed to affect the balance of power among the States.During the 2020 Census, the President announced a policy that broke from this long tradition. It aimed to produce a different apportionment base-one that would, to the maximum extent feasible, exclude persons who are not in a lawful immigration status. See Presidential Memorandum of July 21, 2020 (Excluding Illegal Aliens From the Apportionment Base Following the 2020 Census) [formerly set out below]. This policy conflicted with the principle of equal representation enshrined in our Constitution, census statutes, and historical tradition. The policy further required the Census Bureau to inappropriately rely on records related to immigration status that were likely to be incomplete and inaccurate.SEC. 2. Policy. Both the Fourteenth Amendment of the United States Constitution and section of title 2, United States Code, require that the apportionment base of each State, for the purpose of the reapportionment of Representatives following the decennial census, include all persons whose usual place of residence was in that State as of the designated census date, regardless of their immigration status. These laws, affirmed by the executive branch's longstanding historical practice, do not permit the exclusion of inhabitants of the United States from the apportionment base solely on the ground that they lack a lawful immigration status. Reflecting this legal background, and the values of equal representation and respect that the Constitution and laws embody, it is the policy of the United States that reapportionment shall be based on the total number of persons residing in the several States, without regard for immigration status. It is likewise essential that the census count be accurate and based on reliable and high-quality data.SEC. 3. Ensuring that the Apportionment Base and State-Level Tabulations Include All Inhabitants of Each State. In preparing the report to the President required under section 141(b) of title 13, United States Code, the Secretary shall report the tabulation of total population by State that reflects the whole number of persons whose usual residence was in each State as of the designated census date in section 141(a) of title 13, United States Code, without regard to immigration status. In addition, the Secretary shall use tabulations of population reflecting the whole number of persons whose usual residence was in each State as of the census date, without regard to immigration status, in reports provided to the Governor and officers or public bodies having responsibility for legislative apportionment or districting of each State under section 141(c) of title 13, United States Code.SEC. 4. Data Quality. The Secretary shall take all necessary steps, consistent with law, to ensure that the total population information presented to the President and to the States is accurate and complies with all applicable laws.SEC. 5. Revocation. Executive Order 13880 of July 11, 2019 (Collecting Information About Citizenship Status in Connection With the Decennial Census) [formerly set out above], and the Presidential Memorandum of July 21, 2020 (Excluding Illegal Aliens From the Apportionment Base Following the 2020 Census), are hereby revoked.SEC. 6. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect:(i) the authority granted by law to an executive department or agency, or the head thereof; or(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.J.R. Biden, Jr.
EXCLUDING ILLEGAL ALIENS FROM THE APPORTIONMENT BASE FOLLOWING THE 2020 CENSUSMemorandum of President of the United States, July 21, 2020, 85 F.R. 44679, which excluded from the apportionment base aliens who are not in a lawful immigration status for the purpose of the reapportionment of Representatives following the 2020 census, was revoked by Ex. Ord. No. 13986, §5, Jan. 20, 2021, 86 F.R. 7016, set out above.
- "Bureau" means the Bureau of the Census;
- "Secretary" means the Secretary of Commerce; and