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liveslow/iStock(WASHINGTON) — Just weeks before the 2020 census questionnaire goes to print, the U.S. Supreme Court will decide whether the Trump administration can ask about citizenship.
Oral arguments in the case Tuesday will center on how the government can get the most accurate headcount — and whom the census is supposed to be counting.
The stakes are significant because the census determines the apportionment of seats in Congress and how billions in federal tax dollars are distributed over the next decade.
Until 1950, the census regularly asked about citizenship status, but it was discontinued 70 years ago because of concerns it harmed participation.
Commerce Secretary Wilbur Ross, who oversees the census, said he sought to reinstate the question at the request of the Justice Department, in order to improve enforcement of the federal voting rights law.
New York state and several civil rights groups sued Ross, calling his stated rationale a pretext for discrimination and a politically motivated attempt to generate an undercount in heavily Democratic areas.
By the administration’s own estimates, asking about citizenship is projected to drive down the census count by about 6.5 million people, mostly among immigrants and their families.
“The citizenship question is a bald-faced attempt to racially rig the census, undercount communities of color and undermine fair representation which our democracy relies upon,” said Karen Hobert Flynn, president of Common Cause, a nonpartisan public interest group.
The Constitution requires the government every decade to survey all “persons” living in the U.S. — an “actual enumeration” — regardless of citizenship or status.
The administration calls critics’ claims unfounded.
“The Secretary concluded as a matter of policy that ‘even if there is some impact on responses, the value of more complete and accurate [citizenship] data derived from surveying the entire population outweighs such concerns,'” Solicitor General Noel Francisco wrote in court documents.
The administration said it’s highly “speculative” millions of people would decline participation in the census because of a citizenship question or that the data on immigration status would be used to retaliate against political opponents.
Federal judges this year, in three separate challenges to Ross’ plan, disagreed with the administration’s arguments, striking down the citizenship question.
The rulings have all found that Ross acted illegally — in an “arbitrary and capricious” manner — circumventing the Administrative Procedures Act, which requires federal agencies to carefully study all relevant evidence and facts pertaining to a problem before implementing a new policy. The agency must also publicly lay out the reasons for a decision and allow public comment.
Earlier this month, a federal judge in Maryland also said Ross violated the Constitution “by unreasonably compromising the distributive accuracy of the Census.”
The Census Bureau, part of the Commerce Department, had suggested to agency leadership that citizenship estimates could be more accurately derived from mining existing government records rather than add a question to the 2020 questionnaire. They said it would be potentially less effective and more expensive.
Ross disregarded those views.
“The Secretary’s decision to reinstate the citizenship question is committed to agency discretion by law and thus judicially unreviewable,” Francisco wrote to the high court.
“Questions about citizenship or country of birth (or both) were asked of everyone on all but one decennial census from 1820 to 1950, and of a substantial portion of the population on every decennial census (on the so-called ‘long form’ questionnaire) from 1960 through 2000,” he said.
Last month, the Supreme Court agreed to hear an expedited appeal by the Trump administration — before federal appellate courts have weighed in — because the Census Bureau needs to finalize the census questionnaire for printing no later than June 30.
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