High court takes up citizenship question for census
The oral arguments the Supreme Court will hear Tuesday will be more decorous than the gusts of judicial testiness that blew the case up to the nation’s highest tribunal. The case, which raises arcane questions of administrative law but could have widely radiating political and policy consequences, comes from the Enlightenment mentality of the nation’s Founders and involves this question: Does it matter that a conspicuously unenlightened member of the president’s cabinet lied in sworn testimony about why he made a decision that he arguably has the statutory power to make?
America’s 18th-century Founders placed in the Constitution’s second section after the preamble a requirement for a census. And the 14th Amendment stipulates the required actual enumeration, every 10 years, of “the whole number” of persons residing in the country. From 1820 (when Congress wanted “foreigners not naturalized” to be counted) through 1950, the census almost always included a citizenship question, and in 2018 Commerce Secretary Wilbur Ross decided that the 2020 “short-form” questionnaire, the one that goes to every household, should include one. Ross has testified that he was “responding solely” to a Justice Department request for the question to provide data helpful to enforcement of the Voting Rights Act of 1965.
A federal judge called this rationale “pretextual” because Ross was justifying a decision “already made for other reasons.” This was a polite way of saying Ross lied, which he almost certainly did: Justice officials initially rejected Commerce’s request that it ask for a citizenship question, and said such data was unnecessary for VRA enforcement. The district judge said Commerce sought the Justice letter to “launder” the request for the citizenship question “through another agency,” this being just one of “a veritable smorgasbord” of rules violations by Ross and his aides.
Ross also testified that he was “not aware” of any discussions of the citizenship questions between Commerce and the White House. But after 18 states, 15 municipalities and various immigration advocacy groups sued, he acknowledged meeting early in 2017 with thenpresidential adviser Stephen Bannon, an antiimmigration zealot. The district judge said Ross “materially mischaracterized” – translation: lied about – a conversation with a polling expert to obfuscate the expert’s objections to the citizenship question.
Ross’s wretched behavior doesn’t alter the fact that Congress has granted to him sufficient discretion to include the citizenship question. This, in spite of reasonable surmises about his motives that his behavior seemed designed to disguise.