By Shaleen Shah, Howard University News Service
The Supreme Court is poised to decide if the Trump administration acted improperly when it added a citizenship question to the 2020 Census, following oral arguments in which the court’s conservative majority appeared likely to say that the administration did not.
Commerce Secretary Wilbur L. Ross Jr. added the question last year, saying it would provide information to better enforce the Voting Rights Act of 1965. Critics have challenged that explanation, saying the real reason for adding the question was to discourage participation by noncitizens and persons living in Hispanic communities.
Judges in three lower federal courts have blocked the addition of the question, but the administration sought a definitive determination by the high court before the court’s current session ends in June, which also is when the Census questionnaires are to be printed.
“In an expanded, 80-minute oral argument [April 23] that exposed huge divisions among the justices, the court’s conservatives didn’t buy arguments that …Ross’ plan was illegal or unconstitutional,” USA Today reported. “They didn’t question his motives or reasoning despite three lower court rulings against him.”
“By the argument’s end,” The Los Angeles Times reported, “it appeared the high court would hand down a 5-4 ruling for the Trump administration…”
At the heart of the dispute is the 14th Amendment to the Constitution, which was passed after the Civil War, and prescribed how seats in the House of Representatives should be allocated.
Section 2 of the Amendment contains what is called the Enumeration Clause, stating the purpose of the once-every-10-years tally: “Representatives shall be apportioned among the several states according to their numbers, counting the whole number of persons in each state, excluding Indians not taxed.” https://www.law.cornell.edu/constitution/amendmentxiv
In the years since, the Supreme Court has consistently ruled that “the whole number of persons in each state” makes no distinction between those who are citizens and those who are not.
When Ross announced the addition of the question last March, he said that the Justice Department had requested the information in order to help it determine if state, local and federal governments were in compliance with the guidelines of the Voting Rights Act.
Judges in the three lower court cases ruled that linking the question to the voting rights measure was only an excuse to inject into the census a question that would discourage many from filling out the questionnaire and result in a less accurate count.
The resulting undercount could lead to a reduction of voting strength and a loss of federal funds to areas with significant Hispanic populations—areas that have voted more Democratic than Republican.
“The Administrative Record is rife with both quantitative and qualitative evidence, from the Census Bureau itself, demonstrating that the addition of a citizenship question to the census questionnaire would indeed materially reduce response rates among immigrant and Hispanic households,” U.S. District Court Judge Jesse M. Furman in New York wrote in January.
Two months later, U.S. District Court Judge Richard Seeborg in San Francisco said that “the decision to include the citizenship question was arbitrary and capricious, represented an abuse of discretion, and was otherwise not in accordance with the law.”
Seeborg said Ross “insisted” on adding the citizenship question, even though professional staffers in the Census Bureau warned that including it “would likely result in a significant differential decline in self-response rates within noncitizen and Latino communities and that the requested data could be obtained by other means.”
The third lower court ruling came in late March from U.S. District Court Judge George J. Hazel in Maryland, who said the government failed to properly follow administrative law when it added the question.
“The unreasonableness of Defendants’ addition of a citizenship question to the Census is underscored by the lack of any genuine need for the citizenship question, the woefully deficient process that led to it, the mysterious and potentially improper political consideration that motivated the decision and the clear pretext offered to the public,” Hazel wrote.
The administration has stood its ground.
“Reinstating the citizenship question ultimately protects the right to vote and helps ensure free and fair elections for all Americans,” Kelly Laco, a Justice Department spokeswoman, said in the wake of the New York ruling.
Laco said the Maryland ruling “disappointed” the department. “Our government is legally entitled to include a citizenship question on the census, and people in the United States have a legal obligation to answer,” she said. https://www.washingtonpost.com/local/social-issues/federal-judge-in-maryland-blocks-trumps-administration-plan-to-add-citizenship-question-to-2020-census/2019/04/05/3db89fb0-57c7-11e9-9136-f8e636f1f6df_story.html?utm_term=.0b438771db9f
The administration has repeatedly asserted that Ross, as commerce secretary, had the authority to add a question to the census and that in all but one census from 1820 to 2000, there was a query about citizenship or country of origin.
The House Committee on Oversight and Government Reform is conducting its own investigation of the procedure Ross followed.
“You have testified that you added the question ‘solely’ in response to a December 2017 request from the Department of Justice,” Committee Chairman Rep. Elijah E. Cummings (D-Md.) wrote in a March letter to the secretary, “but the record contradicts your claim, showing that you began orchestrating a campaign to add the citizenship question just days after taking office” much earlier in that year. https://www.politico.com/story/2019/03/29/house-oversight-citizenship-census-question-1244369
The committee issued subpoenas April 2 to Ross and Attorney General William P. Barr for more data on the decision to add the question, and for a deposition by a deputy attorney general in the civil rights division of the Justice Department.
The department responded that it would not comply with the subpoena to depose John Gore, the deputy attorney general unless a department lawyer could be present at the deposition.
Cummings has said that Gore could bring a personal attorney with him, but that “the Committee’s rules—which have been in place for more than a decade under both Republican and Democratic chairmen—prohibit Department of Justice lawyers from attending.”
All 22 Democrats on the committee voted to issue subpoenas. “The Democrats want to interfere with the court case,” Rep. Jim Jordan (R-Ohio), the ranking minority member of the committee, complained. “Why don’t Democrats want to know if you’re a citizen of this country or not?” Republican Justin Amash of Michigan was the only Republican to vote with the majority.
The judge in the San Francisco case pointedly suggested that an intentional effort to produce a less accurate count could be seen as a willful violation of a Constitutional directive.
“[If] the Secretary’s decision to include a question affirmatively interferes with the actual enumeration and fulfills no reasonable governmental purpose, it may form the basis for a cognizable Enumeration Clause challenge,” Judge Seeborg wrote.
The Supreme Court announced shortly after Seeborg’s ruling that it would decide on the Constitutional issues involved in addition to those pertaining to administrative procedure. Judge Hazel, presiding in the Maryland case, rejected claims by the plaintiffs that addition of the question was intended to discriminate against communities of color, and was also a deliberate effort to undercut the Constitutional rights of noncitizens.
The Associated Press has reported that the Census Bureau plans to augment the data it collects next year with information from the Department of Homeland Security on the citizenship status, birth dates, Social Security numbers, and addresses of millions of immigrants, including those who are not citizens.
Analysts in the bureau had told Ross during internal discussions regarding a citizenship question that this information was readily available and more accurate than responses to a question on the Census might be.
“This type of information-sharing agreement is a customary, long-standing practice among federal agencies and is permitted under the law,” DHS spokeswoman Jessica Collins told The Washington Post.
“The information is protected and safeguarded under applicable laws and will not be used for adjudicative or law enforcement purposes,” Collins said.
Nevertheless, some maintain that inclusion of a citizenship question in and of itself could be frightening to some.
“It’s understandable that it’s alarming,” Terri Ann Lowenthal, a former member of a House committee overseeing the Census who has advised some of the groups opposed to the citizenship question, told The New York Times.
“Given the anti-immigration policies of the administration, people who are fearful for their security and their status would see this as another possible effort to harm them.”