At the end of January 2026, Attorney General Catherine Hanaway (R-Missouri) filed a lawsuit against the U.S. Department of Commerce and the Census Bureau for including illegal immigrants in the census count.
Recently, Hanaway posted on X how the federal government agreed counting noncitizens in the census would compromise congressional representation and, therefore, has issued a proposed regulation that forbids their inclusion for 2030 census and 2031 apportionment. Missouri’s litigation has since been dropped.
The Census Bureau published the proposal on Sept. 10. The public comment period concludes Oct. 13.
After the comment period, the bureau could adopt the proposal as written or modify it. A final rule would then be published with an effective date.
“Illegal immigrants should not be represented in Congress,” Hanaway wrote. “We are glad the Trump Administration is taking action, and we will continue fighting to ensure citizens’ voices are never diluted in favor of illegal immigrants.”
She tells American Family Radio (AFR)’s “Jenna Ellis in the Morning” program that this is a big win, but the fight remains.
“It is a big win for every red state that didn't become a sanctuary state and just opened its borders to anyone who wanted to come there. It will shift where congressional seats are apportioned after this next census,” Hanaway says.
Letita James, batter up
Looming legal challenges will likely center on two questions: Does immigration status matter to the Constitution’s mandate to count the “whole number of persons in each state” to achieve representation, and does Congress have the authority to allow the Census Bureau to residence criteria that could exclude certain people?
The Trump administration argues that illegals are not "true inhabitants" with sufficient "tie and allegiance" to the U.S.
New York Attorney General Letitia James could be the first to step to the plate, noting her office successfully blocked similar efforts during the 2020 census.
Hanaway believes the cases following this rule will be very important since any after-Trump administration could simply reverse the rule.
“The first Trump administration tried to do something similar. Court battles ensued, and then it kind of got dropped. The U.S. Supreme Court weighed in. We don't think it's a definitive decision. We think that there are a lot of arguments to be made in favor of this rule,” Hanaway states.
This time around, Hanaway hopes the rule come to pass before a new administration. The Supreme Court will likely weigh in, she believes.
The Left likes to argue, she says, that the U.S. Constitution says any person shall be counted. But there wasn’t a flood of illegal immigrants at the drafting, she notes, and the authors didn’t mean people illegally in the country.
“In fact, from other cases at the time, we know that they didn't count anyone who was temporarily here for a job or on travel. It only was counting permanent legal residents, either citizens or green card holders,” Hanaway states.
It isn’t so much a matter of shifting seats in Republican states, but rather encouraging states and cities to protect their sovereignty in the same way the whole country does, she says. The methods that are used to ensure American voters can also be used to verify only citizens are counted in the census.
Here’s what I want in my gift
Critics point out that the Left only want the undocumented immigrants counted because that gives them more Democrat seats. So far, the proposal, as they observe, only excludes illegal immigrants from the congressional apportionment.
“That argument is a little bit like saying, ‘I got a gift, but I want to be able to control what the gift is, how much money is spent on me. I want to have decision making authority over the gift,’” Hanaway says. “Just because Americans are of a generous spirit and want to take care of everybody who happens to be living within our borders doesn't mean that we should give up the right to control our country.”
