Court considers whether inquiry about citizenship belongs on the U.S. census
Next year, the decennial U.S. census will be conducted as it has been every 10 years since 1790—the “actual enumeration” of the population as required in Article I of the U.S. Constitution.
For the first time, most respondents will fill out forms online, with April 1, 2020, targeted as Census Day. But one matter of controversy remains to be resolved before the Census Bureau finalizes its questionnaire by the end of this June—whether there will be a question about citizenship.
On April 23, the U.S. Supreme Court will take up a case that should resolve the issue. The justices will hear an appeal brought by the Trump administration of a federal district judge’s ruling that invalidated U.S. Secretary of Commerce Wilbur Ross’ 2018 decision to add a citizenship question to the next census.
The stakes are high. The census is used to apportion members of the U.S. House of Representatives and state legislatures, as well as to allocate billions of dollars in federal aid.
Challengers to the citizenship question point to an estimate—from the Census Bureau’s own experts—that asking about citizenship would cause some 6.5 million people not to respond to the questionnaire. Five states—Arizona, Florida, Illinois, New York and Texas—face a “substantial” risk of losing a seat in the House as a result, and California faces a “certainly impending” risk, the federal district judge found.
“The concern among immigrant communities has always been that a question about citizenship will drive down census participation among immigrants, Hispanics and people who live in mixed-status households,” says Dale Ho, director of the Voting Rights Project of the American Civil Liberties Union, which represents the New York Immigration Coalition and four other immigrant organizations that challenged Ross’ decision.
“This will cause the census to lose some distributive accuracy, and the result of that will be a malapportionment of political representation and will threaten the accurate distribution of federal funds,” Ho adds.
With U.S. Department of Commerce v. New York, the high court will consider, for the second year in a row, a high-profile Trump administration policy in its April argument session. Last year it was the administration’s entry ban on travelers from a handful of predominantly Muslim countries, which the justices upheld 5-4 in Trump v. Hawaii at the end of its term.
The census case “involves an issue of imperative public importance,” U.S. Solicitor General Noel Francisco told the justices when asking them to grant review of the case without the parties having to go through a federal appeals court.
“The judgment below takes the unprecedented step of striking a demographic question from the decennial census and thereby preventing the secretary of commerce from exercising his delegated powers to ‘take a decennial census … in such form and content as he may determine,’ ” Francisco wrote, quoting a federal statute.
The two groups of challengers—the immigrant organizations on one hand and New York state, 17 other states and various local governmental agencies on the other—strongly defend the district judge’s ruling but more or less acceded to the Trump administration’s desire to have the Supreme Court take up the case this term. The justices granted review in January, and with the late April oral arguments, a decision is likely to come at or near the end the court’s term in late June, just before the Census Bureau’s deadline to go to the presses.
Question Not Unprecedented
A question about citizenship first appeared on the census in 1820, when Congress required enumerators to count the number of “Foreigners not naturalized.” Later, with the exception of 1840, a citizenship question appeared on every census through 1950.
After that, the census moved toward a short form for most households, while sending a longer form to a sampling of households that included the citizenship question.
After the 2000 census, the bureau replaced the long form on the decennial count with the American Community Survey, a detailed annual questionnaire of a sampling of the population to collect demographic data, including citizenship. It is not used for legislative apportionment.
In March 2018, Ross issued a memo directing the Census Bureau, which is part of the Commerce Department, to reinstate a citizenship question for the 2020 count. Ross said he was acting in response to a request from the Department of Justice, which had urged the move to better enforce the Voting Rights Act of 1965.
Ross testified before a House panel around the same time that in adding the question he was “responding solely” to the Justice Department’s request, and that he was “not aware” of any discussions about the question between the Commerce Department and the White House.
But after the states and the immigration organizations sued, Ross amended the administrative record, revealing that soon after President Donald Trump had taken office in 2017, Ross discussed the citizenship question with then-White House adviser Steve Bannon, an immigration hardliner.
Ross also pushed ahead despite objections from the Census Bureau’s own experts, who had concluded that a citizenship question would depress response rates, increase costs and result in lower-quality citizenship data than would be available by other means, such as the American Community Survey.
In January, U.S. District Judge Jesse M. Furman of the Southern District of New York issued a 277-page decision holding that Ross’ move to add the citizenship question over the objections of Census Bureau staff members violated the Administrative Procedure Act because the secretary’s rationale was pretextual.
Ross “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—a veritable smorgasbord of classic, clear-cut APA violations,” Furman wrote.
The judge stopped short of ruling on the challengers’ Fifth Amendment due process claim that the secretary’s decision was motivated by invidious discrimination against immigrant communities of color. Other challenges to Ross’ decision are proceeding elsewhere, but they may be eclipsed by the Supreme Court’s decision in this case, at least for the 2020 census.
The Trump administration and its allies defend what Francisco, the solicitor general, described in a brief as the reinstatement to the census of “a wholly unremarkable demographic question about citizenship.”
“A question asking about citizenship or country of birth (or both) has a long pedigree on the decennial census,” Francisco added.
The case has also featured an ancillary battle over the challengers’ efforts to depose Trump administration officials. Judge Furman authorized a deposition of a Justice Department official as well as a limited deposition of Ross. The government appealed to the Supreme Court, which permitted the deposition of John Gore, then the acting assistant attorney general for civil rights, but blocked the questioning of the commerce secretary.
In that decision, two justices may have tipped their hand on the larger question now before the court. Justice Neil M. Gorsuch wrote an opinion joined by Justice Clarence Thomas that said “there’s nothing unusual about a new cabinet secretary coming to office inclined to favor a different policy direction, soliciting support from other agencies to bolster his views, disagreeing with staff or cutting through red tape.”
Meanwhile, Furman held a trial last fall, and then based his decision on the lengthy administrative record, and the plaintiffs have ended their efforts to depose Ross (though the question of whether a district court may order discovery to probe the “mental processes” of executive branch officials is part of the government’s appeal).
Christopher J. Hajec, litigation director of the Immigration Reform Law Institute in Washington, D.C., says the federal district judge’s view that Ross acted on pretext was unconvincing because the judge did not identify an improper motive.
“As long as the secretary had a reasoned basis for his decision, it doesn’t matter what other motives he had or what motives the president may have, whether they are ideological or political,” adds Hajec, whose group is affiliated with the Federation for American Immigration Reform, which backs the citizenship question.
“It seems like a fundamental thing that the government might want to know, the number of noncitizens living within its borders,” Hajec says.
The ACLU’s Ho says that while the inclusion of a citizenship question on the decennial census through 1950 was not overly controversial, Ross is seeking to reinstate the question in a much more fraught environment.
“The political and social context is looking to be very different in 2020 than it was in 1950,” Ho says. “Questions about citizenship have a kind of salience today that was not necessarily there in the first half of the 20th century.”
The print version of “Census Fracas” should have clarified that California faces a “certainly impending” risk of losing a seat in the house while five other states faced a “substantial” risk of losing a seat.
This article was published in the April 2019 ABA Journal magazine with the title "Census Fracas: Court considers whether inquiry about citizenship belongs on the U.S. questionnaire."