Justices to decide on census question Citizenship issue put on fast track
WASHINGTON — The Supreme Court agreed Friday to decide whether President Donald Trump’s administration can add a question about citizenship to the 2020 census questionnaire that will be sent to every household in the nation.
The court’s move added a highly charged issue to what had been a fairly sleepy term. The justices have mostly avoided controversy while they adjusted to the new conservative majority created by the arrival in the fall of Justice Brett Kavanaugh.
The federal government has long gathered information about citizenship, but since 1950, it has not included a question about it in the forms sent once a decade to each household. Last month, a federal trial
judge blocked the Commerce Department from adding the question, saying the process that led to the decision was deeply flawed.
The Supreme Court stepped in before any appeals court had ruled on the matter, and it put the case on an unusually fast track. The Supreme Court’s speed was almost certainly a result of a looming deadline — the census forms are set to be printed in June.
It’s rare for the high court to weigh in without the benefit of appellate rulings. Such interventions usually are reserved for national political crises, including the 1970s Pentagon Papers case.
Without immediate action from the court, the solicitor general, Noel Francisco, told the justices, “the government will be disabled for a decade from obtaining citizenship data through an enumeration of the entire population.”
The Supreme Court scheduled arguments for late April, and it is expected to rule before the end of June.
The case — U.S. Department of Commerce v. New
York, No. 18-966 — is the latest test of the scope of executive power in the Trump era. Last year, the justices upheld Trump’s authority to restrict travel from several predominantly Muslim countries. More recently, the court rejected the administration’s request to reinstate a ban on asylum claims by migrants who cross the southern border illegally.
The census case has its roots in the text of the Constitution, which requires an “actual enumeration” every 10 years, with the House of Representatives to be apportioned based on “the whole number of persons in each state.”
“By its terms, therefore, the Constitution mandates that every 10 years the federal government endeavor to count every single person residing in the United States, whether citizen or noncitizen, whether living here with legal status or without,” Judge Jesse Furman of the U.S. District Court in Manhattan wrote last month in his decision, setting out the consensus view.
Critics say adding the question on citizenship would undermine the accuracy of the census because U.S. citizens and people in the country without authorization might refuse to fill out the forms. By one government estimate, about 6.5 million people might decide not to participate.
That could reduce Democratic representation when congressional districts are drawn in 2021 and affect the distribution of hundreds of billions of dollars in federal spending. Furman found that if the question is added, Arizona, California, Florida, Illinois, New York and Texas would risk losing seats in the House, and several states could lose federal money.
Dale Ho, a lawyer with the American Civil Liberties Union, which challenged the addition of the citizenship question, said it “would cause incalculable damage to our democracy.”
“The evidence presented at trial exposed this was the Trump administration’s plan from the get-go,” Ho said.
Wilbur Ross, the commerce secretary, has said he ordered the question to be added in response to a December 2017 request from the Justice Department, which said that data about citizenship would help it enforce the Voting Rights Act of 1965.
In a detailed decision after an eight-day trial, Furman concluded that Ross had dissembled, saying that “the evidence is clear that Secretary Ross’ rationale was pretextual.”
“While the court is unable to determine — based on the existing record, at least — what Secretary Ross’ real reasons for adding the citizenship question were, it does find, by a preponderance of the evidence, that promoting enforcement of the [Voting Rights Act] was not his real reason for the decision,” Furman wrote. “Instead, the court finds that the [Voting Rights Act] was a post hoc rationale for a decision that the secretary had already made for other reasons.”
In his ruling last month, Furman relied on evidence in the administrative record, meaning the materials that the government said Ross had considered before making his decision.
Evidence presented at the trial showed that Ross had wanted to add the question long before the request from the Justice Department. The letter from the Justice Department, Furman wrote, was an attempt “to launder their request through another agency — that is, to obtain cover for a decision that they had already made.”
Documents disclosed in the case showed that Ross had discussed the citizenship issue early in his tenure with Steve Bannon, the former White House chief strategist and an architect of the Trump administration’s tough policies against illegal immigration, and that Ross had met at Bannon’s direction with Kris Kobach, the former Kansas secretary of state and a vehement opponent of unlawful immigration.
“In a startling number of ways,” Furman wrote, “Secretary Ross’ explanations for his decision were unsupported by, or even counter to, the evidence before the agency.”
Furman ruled that the administration had violated federal statutes. But he rejected a constitutional challenge based on equal protection principles, saying there was not enough evidence in the record to conclude that Ross had intended to discriminate against minority groups and migrants.
In a brief to the court, New York said Ross acted directly against the advice of career Census Bureau experts.
“For at least the last forty years, the bureau has vigorously opposed adding any such question based on its concern that doing so ‘will inevitably jeopardize the overall accuracy of the population count’ by depressing response rates from certain populations, including noncitizens and immigrants,” wrote New York Attorney General Letitia James.
The issue already has divided the court to some extent.
The challengers had wanted to depose Ross about his reasons for adding the question, and Furman had agreed. But the administration went to the Supreme Court for a stay of that decision, and the justices said the Cabinet secretary could not be questioned.
Justices Clarence Thomas and Neil Gorsuch would have stopped the trial and not allowed questioning of other officials. Gorsuch said there was no reason to doubt Ross’ motives.
There are at least four other ongoing lawsuits over the question, including a trial in San Francisco that wrapped up Friday.
California attorney Matthew Wise said during closing arguments before U.S. Judge Richard Seeborg that census officials warned Ross that the question would reduce the percentage of immigrants who respond to the survey. The state says that would lead to an undercount that would jeopardize its federal funding and representation.
Wise said Ross was determined to add the citizenship question and made up a justification to support it.
“The decision-making process in this case was not just unusual, it was extraordinary,” he said.
Attorneys for the Justice Department and plaintiffs said Seeborg should still rule so the cases before him might also go before the Supreme Court. The judge was not expected to immediately issue a decision after closing arguments.
The Supreme Court scheduled arguments for late April, and it is expected to rule before the end of June.