Trump Administration to Appeal to Supreme Court in Census Case

The paperwork used by census takers in 2000. (Boris Yaro/Los Angeles Times/TNS)

January 23, 2019

By Greg Stohr

WASHINGTON — President Donald Trump’s administration said it will ask the U.S. Supreme Court to allow a question about citizenship in the 2020 census, promising to file a quick appeal in the hope of resolving the issue in time to start printing questionnaires in June.

The appeal will challenge a Jan. 15 trial court ruling that barred the Commerce Department from including the question. U.S. District Judge Jesse Furman in New York said Commerce Secretary Wilbur Ross had committed a “veritable smorgasbord” of violations of the federal law that governs administrative agencies.

After the trial judge’s ruling, the high court last week scrapped plans to hear arguments Feb. 19 on a preliminary question in the case.

U.S. Solicitor General Noel Francisco said in court papers the justices should take the unusual step of skipping the federal appeals court level and directly reviewing Furman’s ruling. Francisco said the Census Bureau needs to finalize the questionnaire by the end of June, making the normal appellate process infeasible.

“It is exceedingly unlikely that there is sufficient time for review in both the court of appeals and in this court by that deadline,” Francisco wrote. He said the court could hear arguments either during its already-scheduled April sitting or in a special session in May.

Advocacy organizations and a New York-led group of states, cities and counties are suing, saying the citizenship question discriminates against immigrants and will reduce accuracy by lessening participation. A census undercount in areas with large numbers of noncitizens could shift congressional districts and federal dollars away from those communities.

Ross said last March that he was adding the citizenship question at the behest of the Justice Department, which had said it would help with enforcement of the Voting Rights Act, the landmark 1965 law designed to protect minority rights at the polls.

Furman said that explanation didn’t add up. The judge said Ross decided to add the question long before he received the Justice Department request, and after discussing the issue with Trump adviser Steve Bannon and then-Kansas Secretary of State Kris Kobach. Both are staunch advocates of curbing illegal immigration.

Furman said Ross had violated the Administrative Procedure Act in multiple ways.

“He failed to consider several important aspects of the problem; alternately ignored, cherry-picked, or badly misconstrued the evidence in the record before him; acted irrationally both in light of that evidence and his own stated decisional criteria; and failed to justify significant departures from past policies and practices,” Furman wrote in his 277-page ruling.

The Trump administration says census-takers have asked about citizenship as far back as 1820. The last time every household was asked about citizenship on the decennial census was in 1950.

From 1960 to 2000, a sample of the population was asked about citizenship. Since 2005, the Census Bureau has asked about citizenship in a separate annual survey sent to some people.

The 2010 census didn’t include a citizenship question.

The Supreme Court has already signaled its desire to have the case move with unusual speed. Even as it scheduled arguments on the preliminary question, the court let the trial go forward in Furman’s courtroom, rejecting the administration’s request to halt it. That two-track approach meant that Furman could issue his final ruling in time for the Supreme Court to review during the current term.

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