California Sues To Block Addition Of Citizenship Question To Census

California has pushed back quickly against the Trump Administration's decision to include a question regarding citizenship in the 2020 Census.

As James Joyner noted this morning, the Trump Administration is moving forward with a plan to include a question regarding citizenship on the 2020 Census questionnaire that will be mailed to American households as part of the next decennial census. Less than 24 hours after that decision was announced by the Department of Commerce, the State of California has filed a lawsuit seeking to prevent the question from appearing on the Census questionnaire:

Progressives, states and civil rights advocates are preparing a flurry of legal challenges to the Trump administration’s decision to add a question about citizenship to the next census, saying the move will penalize immigrants and threaten civil rights.

The late Monday move from the Commerce Department, which it said came in response a request by the Justice Department, would restore a question about citizenship that has not appeared on the census since the 1950s. The administration said the data was necessary to enforce the 1965 Voting Rights Act.

The state of California immediately challenged the plan in federal court.

California Attorney General Xavier Becerra and Secretary of State Alex Padilla trashed the move as anti-immigrant.

“The citizenship question is the latest attempt by President Trump to stoke the fires of anti-immigrant hostility,” Padilla said in a statement. “Now, in one fell swoop, the US Commerce Department has ignored its own protocols and years of preparation in a concerted effort to suppress a fair and accurate census count from our diverse communities. The administration’s claim that it is simply seeking to protect voting rights is not only laughable, but contemptible.”

New York announced it would also lead a separate multi-state lawsuit to challenge the move on Tuesday.

Former Obama administration Attorney General Eric Holder also blasted the move and said his organization, which focuses on voting enfranchisement and redistricting, would also pursue litigation against what he called an “irresponsible decision.”

Holder said contrary to the rationale presented by the Justice Department, he and other modern-era attorneys general were “perfectly” able to handle those legal matters without such a question on the Census.

“The addition of a citizenship question to the census questionnaire is a direct attack on our representative democracy,” Holder said in a statement.

“Make no mistake — this decision is motivated purely by politics. In deciding to add this question without even testing its effects, the administration is departing from decades of census policy and ignoring the warnings of census experts.”

(…)

Critics of the move say that including such a question on a government survey will scare non-citizens and vulnerable immigrant communities into under-reporting, especially in the context of the Trump administration’s hardline push to curtail illegal and legal immigration. By undercounting these populations, they argue, there will be a major impact that follows on voting and federal funds.

Because the once-a-decade census is used to determine congressional and political districts and to dole out federal resources, an undercount in heavily immigrant areas could substantially impact certain states and major cities and potentially their representation at the federal level.

The question has not been on the full decennial census since the 1950s, but does appear on the yearly American Community Survey administered by the Census Bureau to give a fuller picture of life in America and the population.

The Commerce Department said the decision came after a “thorough review” of the request from the Justice Department. The priority, Commerce said, was “obtaining complete and accurate data.”

“Having citizenship data at the census block level will permit more effective enforcement of the VRA, and Secretary Ross determined that obtaining complete and accurate information to meet this legitimate government purpose outweighed the limited potential adverse impacts,” the statement said.

Becerra and his state have been central to virtually every legal challenge of the Trump administration on issues ranging from immigration, to the environment, to health care. The Justice Department has also sued California over its so-called sanctuary policies to protect immigrants.

The lawsuit itself puts forward two causes of action, one based on that part of the Constitution that authorizes the Census to begin with, and the other dealing with the allegation that the Administration failed to comply with the Federal Law regarding the issuance of new regulations.

The requirement and authority to conduct a Census is set forth in Article I, Section Two, Clause 3 of the Constitution which requires an “actual Enumeration” of the residents in each state for the purposes of apportionment of Congressional Districts. This apportionment number, of course, is also used to determine the number of Electoral Votes each state shall have in Presidential Elections from the time of final apportionment going forward until the next Census. In that respect, it’s important to note that the clause in question makes no distinction between citizens, legal residents (a concept that didn’t really exist in the law at the time the Constitution was drafted), and undocumented immigrants or others who may be in the country illegally. Indeed, since the entire purpose of the Census is to establish the actual population of each state, it’s self-evident that the Census is required to count everyone equally regardless of whether they are citizens or what their immigration status may be. California argues in the first count of its lawsuit that the citizenship question violates the relevant part of the Constitution because it will impede the intent of the clause by making some individuals unwilling to cooperate with Census authorities out of fear that they could face legal consequences if they do so. As a result, the lawsuit states, California and its residents will be harmed due to the fact that the likely undercount will mean that the count of California’s population will likely be lower than it otherwise would be if non-citizen residents were counted or discouraged from participating in the Census because of the citizenship question. This will impact not just representation in Congress but also the allocation of funding under a wide variety of Federal spending programs.

The second count is based on the Administrative Procedure Act, which sets forth the steps that Executive Branch departments and agencies must follow in adopting or repealing regulations. This act has been the basis of several lawsuits that have been filed against Trump Administration actions, as well as several lawsuits that were filed by conservative-leaning states against Obama Era regulatory efforts. In this portion of the lawsuit, California alleges that the Department of Commerce, which operates the Census Bureau, failed to comply with the provisions of the APA that require agencies to allow for a notice and comment period for new regulations or proposals to repeal regulations and that, therefore, the announced policy cannot be implemented since the Administration failed to comply with the law. This argument has been used successfully a number of times in the past against both President Obama and President Trump, and it’s almost always been successful in those situations, such as this one, where it’s clear that the relevant agency did not comply with the APA’s requirements. Given that, one is left to wonder why the agencies in question don’t simply comply with the law when its clear that failure to do so makes it that much easier for a Judge to side with parties seeking to block enforcement of the proposed regulation.

California’s decision to sue came on the same day that several other Democratic-leaning states announced there intention to do so as well. Whether they end up joining in California’s suit, or file actions of their own, remains to be seen. It also comes as the ranking Democrat on the House Oversight Committee is calling for hearings on the citizenship question’s presence in the 2020 Census questionnaire. Additionally, the White House attempted to defend the action, but fell on its face:

The White House on Tuesday defended its decision to include a citizenship question on the 2020 census, a shift that has drawn sharp criticism and lawsuits from Democrats.

“This is a question that’s been included in every census since 1965, with the exception of 2010, when it was removed,” White House spokeswoman Sarah Huckabee Sanders said Tuesday.

“We’ve contained this question that provides data that is necessary for the Department of Justice to protect voters and specifically help us better comply with the Voting Rights Act.”

The official census, sent to every American once every decade, hasn’t included the question since 1950. However, it has been a question listed on other census surveys, such as the American Community Survey, which is regularly sent to households throughout the year.

No doubt the right will defend this action. As a matter of law, though, it appears that there’s a good argument that the Department of Commerce’s action is on shaky legal ground. We shall see what comes out of this court action in the months ahead.

Update: The New York Times at least twelve other statesreports that are expected to file suit against the Trump Administration over the Census questionnaire.

Here’s the Complaint:

California v. Wilbur Ross Et Al by Doug Mataconis on Scribd

FILED UNDER: Borders and Immigration, Donald Trump, Politicians, Race and Politics, US Politics,
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. gVOR08 says:

    California must have had this typed up waiting to fill in the date.

    The late Monday move … came in response a request by the Justice Department, … The administration said the data was necessary to enforce the 1965 Voting Rights Act.

    Little Jeffy Beauregard wants to enforce the Voting Rights Act? That’s freaking hilarious.




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  2. Daryl's other brother Darryl says:

    would restore a question about citizenship that has not appeared on the census since the 1950s

    That’s the Republican Party…mired in an imaginary world that never existed 60 years ago.




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  3. Stormy Dragon says:

    5th Circuit says census people can ask you whatever they want:

    Morales v. Evans

    For extra irony I’d point out that if the liberal wing of SCOTUS had had their way, “direct enumeration” wouldn’t require actual direct enumeration either:

    High Court Rejects Sampling In Census

    Now, I’d love to see the mandatory nature of the long form and ACS ruled unconstitutional, but this is currently a case of the left suddenly not liking things they argued in favor of for years because they don’t like the guy in charge right now.




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  4. Stormy Dragon says:

    @Stormy Dragon:

    PS: I’d also note that as recently as 2000, the long form census did ask about citizenship, so California’s position here is apparently that you can force up 17% of the population to answer questions about their citizenship, but asking the other 83% is unconstitutional.




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  5. HarvardLaw92 says:

    @Stormy Dragon:

    You’re focusing on the wrong argument. The APA aspects of this filing will be what kill this thing. CA’s argument is dead to rights accurate in that regard. I won’t be surprised if the judge who ends up hearing this decides the issue solely based on the APA arguments and determines that he/she doesn’t need to reach the merits of the constitutional argument at all.

    Note as well that there isn’t a district court in the country more dominated by Democratic appointees than the ND of California. The odds of the government losing this one at the district and appellate levels is quite high.




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  6. Tyrell says:

    I don’t understand a lot of the legal arguments here, but it just seems common sense that a question about being a US citizen is very basic. Just who would object and why? I know I have answered that on many applications and other information forms.
    Think about this: to be a US citizen you have to be legally a US citizen.




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  7. Stormy Dragon says:

    @HarvardLaw92:

    The problem with relying on the APA grounds is that what happens if Trump figures out he could be getting his way more often if he just followed the APA procedures?




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  8. HarvardLaw92 says:

    @Stormy Dragon:

    APA was essentially written to make it exceptionally difficult to change regulations on a whim. “Just following APA” is a great deal more complex and irritating than it would seem.




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  9. Stormy Dragon says:

    @HarvardLaw92:

    Yes, but it still means we’re basically relying on a “Midvale School for the Gifted” defense from Trump.




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  10. RGardner says:

    My sister worked for the 1990 and 2000 census in rural redneck areas (Concrete WA if you want to look it up) and her report was it was scary (No government agents on our property). These folks were likewise under-counted because they are loons, but citizens. But magically the only under-counted are today’s got to count every potential Dem voter. But no, this doesn’t fit the narrative, got to count every illegal immigrant to maximize redistricting after the 2020 census. [I say pox on both their houses, but I recognize the system is poxed].




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  11. Bob @ Younsgtown says:

    @Tyrell:

    Think about this: to be a US citizen you have to be legally a US citizen.

    Well that is instructive !! If you have a point your trying to make, you didn’t make it.




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  12. Bob@Youngstown says:

    @Stormy Dragon:

    force up 17% of the population to answer questions about their citizenship, but asking the other 83% is unconstitutional.

    I’m assuming the 17/83 ratio you are referring to is the number of long forms sent versus the short forms sent. In 2000 ONLY the long form contained questions like how well you speak English, what a persons ancestry is, what country born in, as well as the 5 questions about citizenship. The 2000 short form (that was sent to about 83% of the people living in the US) did not have those questions.
    It’s plain to me that the long form was intended to be used for sampling a population rather than identifying. So the first question I had was: How can a sample be to enforce the Voting Rights Act? The second question was, how can one set of questions be mandatory for a random set in the population and a different set of questions be mandatory for another set?




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  13. wr says:

    @Tyrell: Ah, Tyrell and Stormy, proof that you don’t have to understand anything about the law to present yourself as a Great Legal Mind on the internet…




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  14. KM says:

    @Tyrell:
    The Constitution says a census, not a census of just citizens. For y’all who don’t own a dictionary or know how to use google, it’s “an official count or survey of a population, typically recording various details of individuals.” Notice nothing about nationality or citizenship, just the damn number of the people aka population.

    We’ve always counted non-citizens – go back and look at how slaves and indentured servants were categorized. It’s completely historically, traditionally, legally and constitutionally invalid to argue that only citizens matter during a census or that it should be the focus of it.

    My objection to this whole thing (as noted on the other thread) is that as a former Census official, this makes work a hell of a lot hard and more inaccurate then it needs to be solely because asking that question in these times is asking for it. If nobody trusts the government – from illegals hiding from the law to paranoid “deep state”-fearing rednecks – nobody’s going to be as honest as needed for this to be accurate information. @RGardner’s sister is right: it can be dangerous work so why make it worse? I was greeted with shotguns to the face in the nicer neighborhoods and politely told to GTFO of private property – don’t ask about the meth labs and trashier rural “habitations”. Census work is not for the weak.

    Do I want to know how many illegals are in the US? Meh – I like data but like accurate data more. You’re just never going to get a real number and the risk to the base data we need to collect isn’t worth tossing in a politically charged question.




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  15. wr says:

    @Stormy Dragon: “The problem with relying on the APA grounds is that what happens if Trump figures out he could be getting his way more often if he just followed the APA procedures?”

    Basically, what you’re saying is that the trouble with relying on the rule of law as a grounds is that Trump could figure this out and start actually following the law. That wouldn’t be a problem — that’s they way our government is meant to work. I don’t like any of Trump’s policies, but let him put them forward in a lawful manner and then we can have the debate — I’m fine with that. Why would this be a problem for anyone?




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  16. grumpy realist says:

    @HarvardLaw92: Yup. That was one of the rules that was hammered into our heads in the Legislative Procedure class: Constitutional issues are the last gasp judges will resort to only when they can’t find any other way to rule on the situation. (And they get very very annoyed at lawyers who try to raise constitutional issues when they don’t have to.)




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