Policy Issues / Legal

Primer: An Actual Enumeration Means Actual

by Wade Miller, Benjamin Osborne

June 12, 2026

OMB, Commerce, and Congress each possess the authority to make this principle explicit. The governing rule should be simple: The decennial enumeration exists to count, not to estimate.

Summary

The Department of Commerce’s recent decision to step back from injecting differential-privacy “noise” into the census is a welcome step in the right direction,¹ highlighting the Center for Renewing America’s efforts to help bring this issue to the forefront of policy discussions.² Accuracy is the lodestar of the decennial census, and any move that restores fidelity between the published count and the people actually enumerated deserves praise. Nevertheless, the reform leaves the underlying architectural problem unaddressed, and the Census Bureau should address it. The root issue with the new Department of Commerce order is definitional: The constitutionally mandated apportionment enumeration in Article I³ has been folded into a generic regulatory category—“statistical products”⁴ as defined at 5 CFR § 1321.2⁵—that was built for estimates, projections, and analyses of group characteristics, not for an actual head count whose sole constitutional purpose is the apportionment of political power. We commend the Department of Commerce for moving ahead to eliminate differential privacy. The recommendations in this primer are intended to provide constitutional clarity and continued accuracy of the census count. 

Background: The Recent Commerce Decision

First, on the regulation’s own terms, the apportionment enumeration is not a “statistical product” and cannot properly be treated as one. Second, to the extent that the definition has been read to reach the enumeration, that reading exceeds the authority of the underlying statute, the Confidential Information Protection and Statistical Efficiency Act (CIPSEA),⁶ and collides with the Constitution’s enumeration command.⁷ 

As a remedy, the Census Bureau, working with the Office of Management and Budget (OMB), can issue clarifying language—ideally a carve-out amendment to 5 C.F.R. § 1321.2 and a parallel bureau policy statement—establishing that the actual enumeration and the population counts used for apportionment and redistricting are not “statistical products” subject to confidentiality-driven distortion and that accuracy of the count is paramount and nonnegotiable.

The department’s move away from applying differential privacy to its statistical products is significant because differential privacy operates by deliberately adding random error and data falsification to published figures.⁸ For an enumeration whose constitutional reason for being is counting the whole number of persons,⁹ deliberately introducing error is in conflict with the constitutional design and the functional purpose of the census. Stepping away from that practice is therefore properly framed as a pro-accuracy and pro-Constitution reform.

Yet retiring one disclosure-avoidance technique does not resolve the prior question of whether the constitutionally mandated count should ever have been classified alongside survey-based estimates in the first place. So long as the enumeration falls in the undifferentiated “statistical products” bucket, a future administration could reintroduce accuracy-degrading methods through regulation or an internal memorandum. The durable solution is to clarify the definition itself.

Analysis: The Regulatory Architecture and Its Statutory Source

It is worth being precise about the nature of 5 C.F.R. § 1321.2 because the source matters to the remedy. The provision is not a Census Bureau regulation under Title 13. It is an OMB rule, located in Title 5 (Administrative Personnel), Chapter III (OMB), Subchapter B (OMB Directives), Part 1321, titled “Responsibilities of Recognized Statistical Agencies and Units,” promulgated as a final rule at 89 Fed. Reg. 82,473 on October 11, 2024.¹⁰

Its statutory foundation is the Confidential Information Protection and Statistical Efficiency Act, now codified at 44 U.S.C. §§ 3561–3583 following its recodification by the Foundations for Evidence-Based Policymaking Act of 2018.¹¹ CIPSEA is a governmentwide statistical policy and confidentiality statute.¹² It establishes “Recognized Statistical Agencies and Units,” of which the Census Bureau is a principal example,¹³ and it tasks them with producing objective, accurate statistical products while protecting respondents’ confidentiality. Nothing in CIPSEA, and nothing in the text of § 1321.2, mentions the decennial census, apportionment, or redistricting. The definition is generic by design.

That is the crux of the issue. The decennial enumeration was swept into this framework not by any express command but by application. Because the bureau is a recognized statistical agency, its outputs (including decennial data products) have been administered as “statistical products” subject to the confidentiality obligations the framework serves, including the bureau’s separate nondisclosure duty under Title 13.¹⁴ The constitutional mandate to count was thereby quietly subordinated to a subconstitutional, administratively uniform confidentiality framework.

Analysis: Why the Apportionment Enumeration Is Not a “Statistical Product”

A. The text of § 1321.2 does not fit the enumeration.

Beginning with the regulation’s own words, a “statistical product” is defined as a dissemination product that describes, estimates, forecasts, or analyzes the characteristics of groups, and the illustrative list is “general-purpose tabulations, analyses, projections, forecasts, or other statistical reports.”¹⁵ Every verb and every example points to an inference about group characteristics. But constitutional apportionment count is the exact opposite: It is an actual enumeration of persons—a census in the literal sense—not an estimate, projection, or analysis of anyone’s characteristics.¹⁶ It answers a single constitutional question (how many persons reside in each state) with a number that is supposed to be the actual count and not just a model of it.

This definition is reinforced by the statutory scheme that surrounds the count. The apportionment tabulations and the redistricting tabulations are specific deliverables under 13 U.S.C. § 141(b)–(c),¹⁷ and Congress has flatly prohibited the use of statistical sampling to determine apportionment population.¹⁸ The Supreme Court enforced that prohibition in Department of Commerce v. U.S. House of Representatives.¹⁹ 

B. The Constitution makes the accuracy of the count important.

Article I of the Constitution requires an “actual Enumeration,” and the Fourteenth Amendment fixes the object as “the whole number of persons in each State.”²⁰ Congress itself has declared that “the sole constitutional purpose of the decennial enumeration” is apportionment and that ensuring a constitutionally faithful count is a congressional duty.²¹ When a generic confidentiality-driven category is applied to the enumeration in a way that licenses the introduction of deliberate error, it subordinates a constitutional command to an administrative preference. That inversion is the constitutional defect, independent of which disclosure-avoidance technique could be used.

The line the case law draws is instructive. In Utah v. Evans, the court permitted hot-deck imputation—filling isolated gaps in an otherwise complete enumeration—precisely because it serves the completeness of the count, while reaffirming that sampling, which infers population from a subset, is forbidden.²² 

C. The specific governs the general.

Even setting the Constitution aside, ordinary interpretive hierarchy resolves the conflict. CIPSEA and its implementing rule are general statistical policy laws applicable across more than a dozen agencies. Title 13 is the specific statute governing the census, and it contains specific commands: Take an actual enumeration,²³ do not use sampling for apportionment,²⁴ and deliver apportionment and redistricting tabulations.²⁵ Under the canon that the specific governs the general, the generic “statistical product” framework cannot be read to override Title 13’s particularized treatment of the enumeration. Where the two appear to conflict, Title 13 overrides.

D. Congress could not subordinate the count even if it wanted to.

Suppose, contrary to fact, that a statute did purport to subordinate enumeration accuracy to a confidentiality or characteristic-data statistics regime. That statute would be unconstitutional to that extent. The enumeration-for-apportionment purpose is fixed by the Constitution;²⁶ Congress’s power to direct the “Manner” of the census is a power to implement that purpose, not to displace it. Congress may add subjects and collect statistics in the census, but it cannot redefine the constitutional core away from an accurate count of persons. Here, importantly, Congress did not do this—CIPSEA says nothing about the decennial census²⁷—so the problem is one of regulatory overapplication, which is far easier to solve and does not require confronting an unconstitutional statute.

E. There must be a clear statement of the principles of the major-questions doctrine.

Finally, reading a generic OMB confidentiality rule to authorize methods that alter the apportionment count implicates a question of vast political significance—the allocation of seats in the House and of electoral votes. Under the clear-statement principle reflected in the major-questions doctrine, an agency needs clear congressional authorization to claim such power.²⁸ CIPSEA supplies no such authorization. Its silence on the decennial census is therefore not a gap to be filled by the broadest available reading; it is a reason to read the “statistical products” category as not reaching the enumeration at all.

Analysis: How the Definition Came to Be Overapplied

The overapplication is understandable, so the clarification should be framed as a correction rather than an accusation. Three features of the legal landscape created the slack that was overused:

1. Broad form-and-content discretion: Title 13 directs the secretary to take the census “in such form and content as he may determine.”²⁹ That language is a genuine grant of methodological discretion, and it was read expansively to cover disclosure-avoidance design. But discretion over the form and content of the census is discretion to serve the enumeration, not to compromise the accuracy of the count it produces.
2. A real and serious confidentiality duty: Section 9 of Title 13 forbids publishing identifiable data.³⁰ The bureau reached for a uniform, mathematically rigorous protection framework, but the error was treating the apportionment count—which is published as totals, not microdata—as if it carried the same disclosure risk as fine-grained characteristic tabulations.
3. Administrative tidiness under CIPSEA and OMB: OMB’s governmentwide statistical-policy role rewards uniform definitions applied across all recognized statistical agencies.³¹ A single “statistical products” category is administratively convenient. Convenience, however, is exactly what produces an undifferentiated bucket that fails to distinguish a constitutional enumeration from a survey estimate.

In short, the Census Bureau and OMB have real authority. They can decide not to apply a general framework more broadly than its source supports, which can also be corrected without anyone having acted in bad faith.

Policy Proposal:  Corrective Authority—Who Can Fix the Problem and How

A. The Office of Management and Budget

OMB owns the regulation and is the entity best positioned to implement the most direct solution. Part 1321 is an OMB rule issued under 44 U.S.C. §§ 3563 and 3504(e) and 31 U.S.C. § 1104(d).³² OMB can amend § 1321.2 through notice-and-comment rulemaking to add an express exclusion—clarifying that the actual enumeration and the population counts used for congressional apportionment in 13 U.S.C. § 141(b) and legislative redistricting in § 141(c) are not “statistical products” subject to confidentiality methods that alter the counts. OMB can also reinforce the point through a Statistical Policy Directive, which does not require rulemaking and can be issued more quickly as interim guidance.

B. The Department of Commerce and the Census Bureau

The Secretary of Commerce controls census form and content under § 141(a), and the Director of the Census Bureau administers disclosure-avoidance design.³³ Commerce and the bureau can therefore, by policy statement and internal memorandum (which was the same instrument used for the recent reform),³⁴ declare that the apportionment and redistricting counts are produced and released without accuracy-degrading noise and that accuracy of the count takes precedence over uniformity with any broader statistical analysis. Additionally, after OMB makes the suggested reforms, the Department of Commerce can modify its recent rule by expanding the prohibition on noise infusion to nonstatistical products like the decennial census.

C. Congress

For legal permanence, Congress can amend Title 13 to codify that the actual enumeration and the apportionment and redistricting tabulations are not subject to disclosure-avoidance methods that alter the published counts and to reaffirm that the accuracy of the count is of paramount importance. This is the most insulated solution because it removes the question from administrative discretion altogether. It also aligns with the Center for Renewing America’s existing census-reform recommendations.³⁵

Across all three entities, the unifying principle is the one CIPSEA itself endorses—that statistical products must be “accurate” and “objective”—applied with the recognition that for the decennial enumeration, accuracy is not merely a quality standard but what the Constitution requires.

Conclusion

The Department of Commerce deserves credit for ending noise infusion and restoring accuracy as the governing principle of federal statistical practice. But the job is not finished. The next pressing issue is whether the Constitution’s command to conduct an actual enumeration can be treated as just another statistical product. It cannot. The decennial census is not a projection, estimate, or analytical exercise. It is the constitutional mechanism by which political representation is apportioned among the states.

Neither CIPSEA nor OMB’s regulations clearly authorize treating the apportionment count as a statistical estimate subject to deliberate distortion. Congress has repeatedly distinguished apportionment from ordinary statistical activities, and the Constitution demands no less. A general statistical-policy framework should not be permitted to override the constitutional requirement to count the whole number of persons in each state.

OMB, Commerce, and Congress each possess the authority to make this principle explicit. The governing rule should be simple: The decennial enumeration exists to count, not to estimate. Accuracy is not one value among many. It is a constitutional requirement that takes the highest priority. An actual enumeration means just that: actual.

Endnotes

1.  U.S. DEP’T OF COM., Dep’t Admin. Order No. 216-26, Disclosure Avoidance for Statistical Products § 5.01(a) (June 4, 2026), https://www.commerce.gov/opog/disclosure-avoidance-statistical-products.

2.  Wade Miller & Andrew White, The 2020 Census Fraud: How Differential Privacy Skewed Representation, THE CENTER FOR RENEWING AMERICA (Aug. 7, 2025), https://americarenewing.com/issues/the-2020-census-fraud-how-differential-privacy-skewed-representation/.

3.  U.S. CONST. art. I, § 2, cl. 3 (requiring an “actual Enumeration” every ten years “in such Manner as [Congress] shall by Law direct”).

4.  See supra note 1.

5.  5 C.F.R. § 1321.2 (defining “Statistical products” as dissemination products that “describe, estimate, forecast, or analyze the characteristics of groups,” including “general-purpose tabulations, analyses, projections, forecasts, or other statistical reports”).

6.  Confidential Information Protection and Statistical Efficiency Act (CIPSEA), 44 U.S.C. §§ 3561–3583.

7.  U.S. CONST. art. I, § 2, cl. 3.

8.  See U.S. DEP’T OF COM. supra note 1; see also Wade Miller & Andrew White supra note 2.

9.  U.S. CONST. amend. XIV, § 2 (apportionment of Representatives “according to their respective numbers, counting the whole number of persons in each State”).

10.  Responsibilities of Recognized Statistical Agencies and Units, 89 Fed. Reg. 82,473 (Oct. 11, 2024) (codified at 5 C.F.R. § 1321).

11.  Confidential Information Protection and Statistical Efficiency Act (CIPSEA), 44 U.S.C. §§ 3561–3583.

12.  Id. 

13.  5 C.F.R. § 1321.2 (defining “Recognized Statistical Agency or Unit”); Responsibilities of Recognized Statistical Agencies and Units, 89 Fed. Reg. 82,473 (Oct. 11, 2024) (codified at 5 C.F.R. pt. 1321).

14.  13 U.S.C. § 9 (prohibiting the bureau from making any publication whereby the data furnished by any particular establishment or individual can be identified).

15.  5 C.F.R. § 1321.2. 

16.  See U.S. CONST. art. I, § 2, cl. 3.

17.  13 U.S.C. § 141(b) (apportionment tabulations transmitted to the president); id. § 141(c) (tabulations for legislative redistricting transmitted to the states within one year of the census date); see also 2 U.S.C. § 2(a) (showing that the president transmits to Congress a statement “showing the whole number of persons in each State,” indicating that the number ought to be an enumerated and not a modeled one).

18.  13 U.S.C. § 195 (barring the use of statistical sampling “for the determination of population for purposes of apportionment of Representatives in Congress among the several States”).

19.  Dep’t of Commerce v. U.S. House of Representatives, 525 U.S. 316 (1999) (holding that 13 U.S.C. § 195 prohibits the use of sampling to determine apportionment population, whether as a substitute for or supplement to enumeration).

20.  U.S. CONST. art. I, § 2, cl. 3; U.S. CONST. amend. XIV, § 2.

21.  Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, 1998, Pub. L. No. 105–119, § 209 (a)(1-3).

22.  Utah v. Evans, 536 U.S. 452 (2002) (distinguishing constitutionally permissible hot-deck imputation, which fills isolated gaps in an otherwise complete enumeration, from prohibited sampling, which infers population from a subset). 

23.  13 U.S.C. § 141(a) (decennial census taken “in such form and content as [the Secretary of Commerce] may determine”).

24.  13 U.S.C. § 195 (barring the use of statistical sampling “for the determination of population for purposes of apportionment of Representatives in Congress among the several States”).

25.  13 U.S.C. § 141(b) (apportionment tabulations transmitted to the president); id. § 141(c) (tabulations for legislative redistricting transmitted to the states within one year of the census date).

26.  See U.S. CONST. art. I, § 2, cl. 3; U.S. CONST. amend. XIV, § 2.

27.  Confidential Information Protection and Statistical Efficiency Act (CIPSEA), 44 U.S.C. §§ 3561–3583.

28.  West Virginia v. EPA, 597 U.S. 697 (2022) (agencies must point to clear congressional authorization to resolve questions of vast economic and political significance).

29.  13 U.S.C. § 141(a) (decennial census taken “in such form and content as [the Secretary of Commerce] may determine”).

30.  13 U.S.C. § 9 (prohibiting the bureau from making any publication whereby the data furnished by any particular establishment or individual can be identified).

31.  5 C.F.R. § 1321.

32.  Id.

33.  13 U.S.C. § 141(a) (secretary’s authority over census form and content); id. § 21(c) (Director of the Census performs duties as the Secretary directs). 

34.  See supra note 1.

35.  See Benjamin Osborne, Primer: Republishing the 2020 Census, THE CENTER FOR RENEWING AMERICA (Aug. 8, 2025), https://americarenewing.com/issues/primer-republishing-the-2020-census/.