Supreme Court re­fuses to OK ci­ti­zen­ship ques­tion on 2020 cen­sus

Lodi News-Sentinel - - FRONT PAGE - By David G. Sav­age

WASH­ING­TON — The Supreme Court, de­liv­er­ing a po­lit­i­cal blow to the Trump ad­min­is­tra­tion and a vic­tory for Cal­i­for­nia, on Thurs­day re­fused to up­hold an ef­fort to ask all house­holds about the ci­ti­zen­ship of their res­i­dents as part of the 2020 cen­sus.

A 5-4 ma­jor­ity sent the mat­ter back to a lower court for re­view, raising doubts about whether the ad­min­is­tra­tion will now have enough time to win approval to in­clude a ci­ti­zen­ship ques­tion in next year’s sur­vey of all American house­holds.

In a rul­ing by Chief Jus­tice John G. Roberts Jr. and the four lib­eral jus­tices, the court did not de­cide the is­sue, but said the Trump ad­min­is­tra­tion so far has not ad­e­quately laid out its rea­sons for adding the ques­tion beyond a “con­trived” ex­pla­na­tion.

“Rea­soned de­ci­sion-mak­ing un­der the Ad­min­is­tra­tive Pro­ce­dure Act calls for an ex­pla­na­tion for agency ac­tion. What was pro­vided here was more of a dis­trac­tion,” Roberts said.

He said the law “is meant to en­sure that agen­cies of­fer gen­uine jus­ti­fi­ca­tions for im­por­tant de­ci­sions, rea­sons that can be scru­ti­nized by courts and the in­ter­ested pub­lic. Ac­cept­ing con­trived rea­sons would de­feat the pur­pose of the en­ter­prise. If judicial re­view is to be more than an empty ritual, it must de­mand some­thing bet­ter than the ex­pla­na­tion of­fered for the ac­tion taken in this case.”

The rul­ing in­cluded a di­rect re­buke of Com­merce Sec­re­tary Wil­bur Ross, who last year de­cided to add a ci­ti­zen­ship ques­tion to all forms for the first time since 1950.

“Al­to­gether, the ev­i­dence tells a story that does not match the ex­pla­na­tion the sec­re­tary gave for his de­ci­sion,” Roberts said.

Cen­sus ex­perts, cit­ing the climate of fear in im­mi­grant com­mu­ni­ties, pre­dicted that mil­lions of house­holds will refuse to par­tic­i­pate in the cen­sus if the ques­tion is asked. This in turn could pro­duce a se­vere un­der­count in states such as Cal­i­for­nia and Texas, and lead to a loss of gov­ern­ment funds and po­lit­i­cal power for the next decade.

Cal­i­for­nia Gov. Gavin New­som said Thurs­day that the state would re­main vig­i­lant, re­gard­less of the Supreme Court’s ac­tion, to en­sure an ac­cu­rate count of res­i­dents in 2020.

“We are en­cour­ag­ing our di­verse com­mu­ni­ties of the power and po­tency of par­tic­i­pa­tion, and we are go­ing to make sure we run an un­prece­dented cam­paign to touch ev­ery cor­ner of this state,” he said, adding that Cal­i­for­nia is spend­ing $187 mil­lion to en­sure a com­plete count.

Thurs­day’s de­ci­sion could also affect other pend­ing lit­i­ga­tion against the Trump ad­min­is­tra­tion in­volv­ing changes to en­vi­ron­men­tal and im­mi­gra­tion rules and poli­cies. Some of those changes have been chal­lenged in court on the ba­sis that the ad­min­is­tra­tion did not ad­e­quately ex­plain its ra­tio­nale or fol­low the proper pro­ce­dures.

Pres­i­dent Don­ald Trump, who is cur­rently in Ja­pan for the G-20 meet­ing, said it was “ridicu­lous” that the ci­ti­zen­ship ques­tion could not be added.

“Only in Amer­ica!” he tweeted, adding that he had asked his at­tor­neys “if they can de­lay the cen­sus, no mat­ter how long” until the Supreme Court can be pro­vided the in­for­ma­tion it is seeking.

In a state­ment, Jus­tice Depart­ment spokesper­son Kelly Laco said, “We are dis­ap­pointed by the Supreme Court’s de­ci­sion to­day. The Depart­ment of Jus­tice will con­tinue to de­fend this ad­min­is­tra­tion’s law­ful ex­er­cises of ex­ec­u­tive power.”

Gov­ern­ment lawyers had said the Cen­sus Bureau needed a de­ci­sion on the new ques­tion by July so it could be­gin print­ing forms. That dead­line may be pushed back, but it is not clear that the ad­min­is­tra­tion can muster the ev­i­dence to win its claim.

The court was badly di­vided on the is­sue.

Four of its con­ser­va­tives would have ruled for the Trump ad­min­is­tra­tion and up­held its de­ci­sion to add the ques­tion.

“For the first time ever, the court in­val­i­dates an agency ac­tion solely be­cause it ques­tions the sin­cer­ity of the agency’s oth­er­wise ad­e­quate ra­tio­nale,” said Jus­tice Clarence Thomas, joined by Jus­tices Neil M. Gor­such and Brett M. Ka­vanaugh. Jus­tice Sa­muel A. Al­ito Jr. dis­sented sep­a­rately.

Some con­ser­va­tive activists pounced on Roberts, re­call­ing that he had also pro­vided the key fifth vote with lib­eral jus­tices to up­hold the Af­ford­able Care Act. American Con­ser­va­tive Union chair Matt Sch­lapp tweeted that he was in fa­vor of “im­peach­ing the chief jus­tice for ly­ing to all of us about his sup­port of the Con­sti­tu­tion.”

Many con­ser­va­tives were hop­ing to use the cen­sus to ob­tain more ac­cu­rate ci­ti­zen­ship data, which could al­low states to re­draw their elec­tion maps based on the num­ber of el­i­gi­ble cit­i­zens, rather than the to­tal pop­u­la­tion, as is cur­rently used. Repub­li­can strate­gist Tom Hofeller, who died last year, had ad­vised his clients four years ago that the use of voter data “would be ad­van­ta­geous to Repub­li­cans and non-His­panic whites,” and “would clearly be a dis­ad­van­tage for the Democrats.” His words came to light re­cently af­ter his daugh­ter turned over his com­puter files to lawyers for Com­mon Cause in North Carolina.

Last year, Ross said he had de­cided to add the ci­ti­zen­ship ques­tion in re­sponse to a re­quest from the Jus­tice Depart­ment, cit­ing its duty to en­force the Vot­ing Rights Act of 1965. Some­times, judges and gov­ern­ment lawyers need to know if there are enough black or Latino vot­ers in an area to draw an elec­tion dis­trict that might elect a mi­nor­ity representa­tive.

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