Clear Divide Emerges Among Justices Over Citizenship Question on Census

April 23, 2019 by Dan McCue

The conservative and liberal justices of the U.S. Supreme Court appeared to be sharply divided over the Trump administration’s plan to add a citizenship question to the 2020 census.

The high court’s ruling in the case could affect how many seats states have in the U.S. House of Representatives after 2021 and their share of hundreds of billions of federal funding over the next decade.

Three federal courts — in California, New York and Maryland — have blocked the U.S. Commerce Department from adding the citizenship question.

In each case, the courts ruled that Commerce Secretary Wilbur Ross violated federal administrative law in the way he tried to restore the question to the census.

“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 considerations that motivated the decision and the clear pretext offered to the public,” wrote U.S. District Judge George Hazel of Maryland in the most recent ruling, handed down on April 5.

Two of the three judges — those in California and Maryland — also ruled that asking if people are citizens would violate the provision of the Constitution that calls for a count of the population, regardless of citizenship status, every 10 years.

As explained in Judge Hazel’s ruling, including the question would be unconstitutional because, at a time of increased immigration enforcement and anti-immigrant rhetoric, it hinders the government’s ability to count every person living in the United States once a decade as the Constitution requires.

The Trump administration has pushed back hard at the rulings, arguing the courts are interfering with Ross’ “wide discretion” to design the census questionnaire as he sees fit, and that those challenging the question — a long list of plaintiffs that include states, cities and local municipalities, and civil rights groups — don’t have standing to do so.

The White House also contends the question is clearly constitutional because it has been asked on many past censuses and continues to be used on some smaller population surveys. The last time the question was used in the U.S. Census was in 1950.

Ross himself has argued including the question will help boards of elections determine and verify where eligible voters live, and therefore aid in the enforcement of the federal Voting Rights Act.

However opponents of the plan contend the question would intimidate millions of Hispanics and immigrants, who would therefore likely go uncounted. If that happens, they say, Arizona, California, Florida, Illinois, New York and Texas would likely all lose representatives in Congress.

And coincidently, they note, both Hispanics and immigrants tend to vote for Democrats.

On Tuesday, the oral arguments before the court lasted for nearly 80 minutes rather than the customary hour. But by the time they ended, it appeared the court’s conservative majority will allow the question to be included.

Related article | House Gets Its Say as Supreme Court Takes Up Census Citizenship Question

Chief Justice John Roberts Jr., for instance, spoke of how the census had always been a tool for gathering a range of information, not just statistics about where people live, and Justice Neil Gorsuch noted that the citizenship question has been asked on the census questionnaire more times than not.

Justice Brett Kavanaugh suggested Congress could change the law to specifically bar a citizenship question if it is truly concerned the accuracy of the count will be affected by it.

Justice Samuel Alito Jr. meanwhile pointed out that while lower courts had objected to how Ross tried to revive the question, none of them ruled he’d acted in an arbitrary or capricious manner.

In contrast, the liberal justices appeared to suggest they think allowing the question to stand would be a mistake. And they weren’t shy about communicating their feelings.

Justice Sonia Sotomayor repeatedly interrupted Solicitor General Noel Francisco, who represented the administration, with questions.

“Enumeration means how many people reside here,” Sotomayor said during one exchange.

“It doesn’t mean how many are citizens,” she said.

Francisco responded by saying Ross “understood there was a downside” to asking the citizenship question, but “he concluded that the benefits outweighed the costs.”

This failed to satisfy Sotomayor who said “there’s no doubt that people will respond less.”

“If you’re talking about prediction, this is about 100 percent that people will answer less,” she said.

Justice Elena Kagan focused on the process Ross used to make his decision.

Documents and testimony in the lower court proceedings detail that Ross began discussing the citizenship question with others shortly after he became commerce secretary in 2017.

At one point he consulted President Donald Trump’s then-top political advisor Steve Bannon about the matter, and later he spoke to then-Kansas Secretary of State Kris Kobach, who would later serve on the president’s voter fraud commission.

Francisco maintained Tuesday that the secretary was merely being thorough as he considered whether the question should be added.

But Kagan was dubious.

“It really does seem that the secretary was shopping” for assistance, she said, noting he also reached out to the Justice Department for advice.

“You can’t read this record without sensing that this need is a contrived one,” Kagan added.

The Supreme Court is hearing the case on an expedited basis. No federal appeals court has yet to weigh in on the lower court decisions.

The justices will rule on the case by late June, although they could hand down a decision soon, to facilitate the printing census forms in time for the April 2020 population count.

The case is United States Department of Commerce v. New York, No. 18-966.

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