Trump Administration Can’t Add Citizenship Question to 2020 Census, For Now

June 27, 2019 by Dan McCue
California on track to lose at least one congressional seat after 2020 Census (Dreamstime/TNS)

WASHINGTON – In a blow to the Trump administration, the U.S. Supreme Court Thursday blocked the addition of a citizenship question to the 2020 census, holding that Commerce Secretary Wilbur Ross failed to adequately explain his reason for wanting it.

In a 92-page ruling that includes concurrences and dissents on specific sections from every member of the court, the justices sent the issue back to the Commerce Department so that it can provide another explanation for wanting to add the controversial question.

Chief Justice John Roberts, who wrote the main opinion, said the court simply “cannot ignore the disconnect between the decision made and the explanation given.”

“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. In these unusual circumstances, the district court was warranted in remanding to the agency, and we affirm that disposition,” Roberts said.

According to the chief justice, blocking the citizenship question’s addition to the 2020 census does not necessarily mean the department desire to include it was “substantively invalid.”

“But agencies must pursue their goals reasonably,” Roberts wrote. “Reasoned decision-making under the Administrative Procedure Act calls for an explanation for agency action. What was provided here was more of a distraction.”

Commerce Secretary Ross announced that he planned to add a citizenship question to the 2020 census in March 2018.

In revealing his decision to resume a practice that had been discontinued in 1950,  Ross initially said the collection of citizenship information on census forms was a long-standing historical practice” of his department.

Critics immediately hit back, saying Ross’s decision was just one more example of the Trump administration’s vilification of immigrants.

The last time the citizenship question appeared on census forms sent to every household in the country, America was in the midst of a dramatic post-war shift and chief interest of census takers was documenting the population shift away from cities and to the suburbs.

In the years that followed, immigration declined dramatically — due in part to quotas established in the National Origins Act of 1924 — and the citizenship question was dropped in the 1960 census in all locations but New York City and Puerto Rico due to a large influx of Puerto Ricans moving to the New York metropolitan area.

Ross acknowledged the question could have “some” impact on responses in some communities, but said the information sought was “of greater importance than any adverse effects that may result from people violating their legal duty to respond.”

Later, in sworn testimony before Congress, Ross said he decided to add the question in response to a Justice Department request in December 2017 for data to help it enforce the Voting Rights Act.

Three federal trial judges have since concluded Ross was not being truthful.

Documents showed that early in his tenure, Ross had discussed the citizenship question with Steve Bannon, who was then White House chief strategist. It appeared to the judges in the lower courts that Ross’s statements about the Voting Rights Act was nothing more than an 11th hour attempt to cover his tracks.

Roberts was troubled by all this as he drafted his opinion.

 “The reasoned explanation requirement of administrative law, after all, is meant to ensure that agencies offer genuine justifications for important decisions, reasons that can be scrutinized by courts and the interested public,” he  wrote. “Accepting contrived reasons would defeat the purpose of the enterprise.”

Rulings ‘Meaning’ All Down to Timing

Despite the gravity of the court’s decision, it’s not entirely clear what it means on a practical level. Earlier this year, the Trump administration pressed for a swift decision in the case, telling the court printing of the census needed to commence by July 1.

If that is indeed the case, the citizen question won’t appear on the 2020 census. But Robert’s opinion affords the administration a chance to offer a new justification of the question. If that were to happen and the court accept it — and the printing accelerated — it is still not outside the realm of the slimmest possibility that some form of the question could be revived.

In the longest of the concurring opinions, Justice Samuel Alito worried the decision would give courts too much of a free hand to probe the subjective motivations of government officials who make controversial decisions.

As far as Alito is concerned, courts have no business “sticking their noses into the question whether it is good polity to include a citizenship question on the census or whether the reasons given by Secretary Ross for that decision were his only reasons or his real reasons.”

Justice Clarence Thomas, meanwhile, said the Supreme Court’s only role in the case was to decide whether Ross complied with the law.

“The Court correctly answers these questions in the affirmative. That ought to end our inquiry,” the justice said in a concurrence on which he was joined by Justice Neil Gorsuch.

In Thomas’s view, in rendering its decision the majority “engaged in an unauthorized inquiry into evidence not properly before [the Court] to reach an unsupported conclusion.”

Justice Stephen Breyer, joined by the other liberal Justices, said he agreed Ross provided a pretextual reason for placing a question about citizenship on the short-form census questionnaire and that a remand to the agency is appropriate on that ground. 

But he went on to say he believed Ross’s decision to add the citizenship question was “arbitrary and capricious and therefore violated the Administrative Procedure Act.”

Reaction Swift, Varied

Caroline Fredrickson, president of the American Constitution Society, said the Trump administration’s attempt to add a citizenship question to the census is clearly a deliberate attempt to undercount minorities and immigrants.

“Lower courts have spelled it out for us as well, repeatedly taking the Trump administration to task for the tortured logic and shifting arguments behind this effort. And if further evidence of corrupt intent were needed, we have the recently released files of a GOP operative that clearly show the question is intended to help the GOP and ‘non-Hispanic whites.’

“Today the Supreme Court agreed that the administration’s explanations for why it wants to add such a question don’t add up. But no one should be popping any champagne corks,” she said. “In its decision, the Supreme Court essentially invited the Trump administration to provide a better public explanation for its political manipulation of the census. In doing so, it left the door open to future dirty tricks from an administration that has already proven itself untrustworthy on issues of race and equality.”

Curt Levey, president of the conservative Committee for Justice, took a different tack, criticizing Chief Justice John Roberts.

“Roberts had disappointed conservatives Wednesday – to a degree not seen since he saved ObamaCare in 2012,” Levey said.

“Perhaps Roberts thought he was ‘balancing’ the Court by siding with the conservative justices in the political gerrymandering decision issued today while siding with the liberals in this case, or by splitting the baby in the census case by rejecting some of the challengers’ claims and remanding the case to the lower courts,” Levey said. “Conservatives won’t be fooled by a census decision that effectively gives the President’s critics exactly what they were seeking.

Meanwhile, on Capitol Hill, House Majority Leader Steny Hoyer, D-Md., said Thursday’s Supreme Court ruling on the Trump Administration’s effort “to interfere with the 2020 Census recognizes that the Commerce Department has not sufficiently explained why adding a citizenship question would be justified. 

“Indeed, Chief Justice Roberts was right to call the Department’s attempts to justify its proposed citizenship question ‘a distraction,'” Hyer said. “Everyone knows why the Administration seeks this change, because evidence has come to light proving it is a deliberate effort to undercount minorities and exclude communities from their proper representation and share of federal resources.

 “This decision is a reminder that advocates for equality and full representation must redouble our efforts to prevent tampering with the census and keep it nonpartisan,” the Maryland Democrat said. “That’s what the Democratic-led House will continue to do, and I hope Republicans will join us in reaffirming that the census, as outlined in our Constitution, must be undertaken in a way that is fair, accurate, and counts every person in this country.”

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