Eighteen States Sue To Block Citizenship Question On Census

New York and nearly two dozen other jurisdictions have filed a lawsuit seeking to bar the Trump Administration from asking about citizenship in the 2020 Census.

Last week, the Census Bureau announced that it would include a question regarding citizenship in the questionnaire that will be sent to every American household as part of the 2020 Census. That decision immediately came under fire from many critics who contended that the question would lead to reduced compliance with the required population count that the Census is intended to accomplish due to the fact that it would lead immigrants, legal and otherwise, would be less inclined to respond to the questionnaire or cooperate with Census takers, thus leading to an inaccurate count that would impact a number of states. One of those states, California, filed a lawsuit seeking to block the Census Bureau from including the question within hours after the decision was announced and, today, that suit was joined by one filed on the other side of the country by New York, seventeen other states, and several major cities:

New York Attorney General Eric Schneiderman (D) filed a federal lawsuit on Tuesday aimed at blocking the Trump administration from adding a question about citizenship to the 2020 census, saying such a question violates the U.S. Constitution’s mandate to count all persons.

The suit was filed on behalf of 18 states, six cities and the U.S. Conference of Mayors. It comes a little over a week after the Commerce Department, which oversees the Census Bureau, announced it would add the question. Schneiderman said the decision to add a citizenship question “blatantly” undermined the Constitution’s mandate to count all people.

“The prospect of someone saying, ‘I am from the Trump administration’ knocking on your door to ask a question about citizenship would understandably provoke real fear,” Schneiderman said during a Tuesday press conference, flanked by members of New York’s congressional delegation.

The numbers from the census are used to determine how many seats each state gets in Congress as well as how hundreds of billions of dollars in federal funds are allocated. Democratic members of New York’s congressional delegation said Tuesday that the decision to add a citizenship question was an attack on states, like New York, with high immigrant populations in an attempt to cut their congressional representation and share of federal funding.

“It is being added to harm states and cities like New York both politically and financially,” said Rep. Carolyn Maloney (D-N.Y.). “We are being unfairly targeted because we have large, diverse immigrant populations which we welcome and support.”

Civil rights groups voiced loud opposition to adding the question, noting that the bureau has not tested the question and that immigrant groups will be afraid to respond out of fear about their immigration status. In September, census researchers reported they were already seeing an unprecedented amount of concern about the confidentiality of census responses amid the Trump administration’s harsh immigration rhetoric and policies.

The census already asks Americans about their citizenship as part of the American Community Survey, a smaller annual survey that goes out to about 3 million people. The Department of Justice asked the Commerce Department to add a citizenship question to the 2020 census, saying it needed better information to better enforce Section 2 the Voting Rights Act, the landmark 1965 law designed to protect the voting power of minorities. Section 2 prohibits discriminatory voting practices.

Although longer in length and more detailed due in large part to the number of Plaintiffs involved in the case, this Complaint sets forth basically the same arguments that California asserts in its lawsuit.

In the first part of the Complaint, the Plaintiffs argue that including the citizenship question in the Census, the Federal Government would essentially be defeating the primary purpose of the Census itself. That purpose is set forth in Article I, Section Two, Clause 3 of the Constitution which requires an “actual Enumeration” of the residents in each state primarily for the purpose of apportionment of Congressional Districts. In turn, this apportionment is used to determine the number of Electoral Votes that each state will have in Presidential elections from the time of apportionment going forward, which in this case would mean for Presidential elections beginning in 2024. As a preliminary matter, it is important to note that the clause in question makes no distinction between citizens, legal residents, and undocumented immigrants. This is similarly true of those provisions of the United States Code that deal with conducting the Census. This makes sense given the fact that the entire purpose of the Census is to establish the actual population of each state and the United States as a whole. This means counting everyone regardless of their citizenship or immigration status. Given that, there is quite simply no reason to include a question regarding citizenship in the Census questionnaire at all.

As California does, the Plaintiffs argue that including the question violates this portion of the Constitution because it will likely impede the intent of the clause by making it less likely that immigrants specifically and Latino-Americans generally will cooperate with the Census for fear that the information they provide could end up being used against them. This likely undercount, the Plaintiffs argue, will cause them damage not only due to the potential impact it could have on the number of Representatives and Electoral Votes are assigned to them via reapportionment, but also due to the fact that the Census population numbers are used to determine funding levels for a wide variety of Federal programs ranging including housing programs, education funding, and other programs. Be

Additionally, the Plaintiffs allege that the Commerce Department, which oversees the Census Bureau, violated the Administrative Procedure Act in setting forth the regulations authorizing the inclusion of the citizenship question. As I’ve explained in the past, the APA sets forth the steps that Executive Branch departments and agencies must follow when they adopt new regulations or repeal existing regulations. At its core, the law requires a notice and comment period prior to the adoption of these regulations and more generally requires that the new regulation or repeal be supported by some level of objective evidence.  During the Obama Administration, the APA law was used by Texas and several conservative states as part of the basis for their claims against various regulations such as the DACA program and a related immigration relief program called DAPA that provided DACA-like relief to the parents of American citizen children. The APA has also been part of the basis for lawsuits against several Trump Administration policies such as the Muslim Travel Ban, the President’s order to bar transgender troops from the military, the Administration’s efforts to repeal DACA, and others. In many of those cases, the argument has been successful because it was self-evident that the relevant agency did not properly follow the APA when it adopted the relevant regulations. As I’ve stated in the past, given that fact it’s somewhat puzzling why the relevant agencies have not simply complied with the notice and comment provisions of the act at the very least.

In any case, except with respect to the claims made pursuant to the APA the claims raised in this lawsuit are in many cases questions of first impression that Federal Courts have not had to deal with in the past. For that reason, it’s difficult if not impossible to predict this early in the litigation how a court is likely to rule on the claims dealing specifically with the Census itself. At the very least, it seems clear that the states bringing these actions have at least alleged sufficient facts to establish that they have standing to bring the underlying claims given the extent to which they could be damaged if there were indeed an undercount in the Census. At the same time, though, there’s a good argument to be made that these arguments are premature or that the evidence that including the citizenship question would decrease response rates is entirely hypothetical. Given that, the Federal Government is likely to argue that the Constitutional claims are, at best, premature. In any case, it’s likely that both of these claims will be heavily litigated, and it will be interesting to see how the courts handle the question being presented to them.

Here’s the Complaint:

New York Et Al v. Dept. of Commerce by Doug Mataconis on Scribd

FILED UNDER: Law and the Courts, 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. HarvardLaw92 says:

    In case anybody was wondering, the states joining New York are: Connecticut, Delaware, Illinois, Iowa, Maryland, Massachusetts, Minnesota, New Jersey, New Mexico, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia, and Washington. It’s actually 17 states including New York.

    The cities are: Washington, D.C., Chicago, New York, Philadelphia, Providence, Seattle, and San Francisco, plus the United States Conference of Mayors.

  2. OzarkHillbilly says:

    As I’ve stated in the past, given that fact it’s somewhat puzzling why the relevant agencies have not simply complied with the notice and comment provisions of the act at the very least.

    Actually it’s not puzzling at all. They’re just a bunch of rich MOTU wannabe’s who haven’t got a clue about what they are doing. Either that or IOKIYAR.

  3. Stormy Dragon says:

    @OzarkHillbilly:

    I wouldn’t be surprised if there’s also some “malicious compliance” involved on the part of the non-political appointees as well.

  4. Gustopher says:

    How about a compromise, where states choose whether they want to have that question asked

    Then, the Red States can get their hate on, and depress their numbers, and get less representation. Everyone wins!

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  5. TM01 says:

    Why is that question suddenly magically Unconstitutional?

    It was asked for a long, long time, and was asked at least as recently as under Bill Clinton.

    @Gustopher: lol. Like Illinois isn’t already going to lose more representatives.

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  6. Scott says:

    violates the U.S. Constitution’s mandate to count all persons.

    Given that a complete and accurate count is probably logistically impossible no matter what resources are thrown at the census, I wonder if there is a point at which an undercount considered to be unconstitutional. I assume that question has not been previously answered.

    As a Texan, I get to ask Sens Cornyn and Cruz why they support this administration when its many policies (including this one) such as trade, tariffs, etc. hurt Texas. There is a discomfort level which I find amusing.

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  7. Leonard says:

    Census information is absolutely secure for 72 years. It cannot possibly be used against you. The legal protections on it are on par with doctor-patient or spousal confidentiality. This is stupid. If the #partyofscience cares about good data, they should spend the next two years spreading the message to cooperate with census takers.

  8. An Interested Party says:

    Census information is absolutely secure for 72 years.

    Uh huh…as if this administration can be trusted…

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  9. TM01 says:

    @Scott:
    Wait.
    So what happens to me if I don’t send my form back in?

    If people use their free speech rights to not respond to the census, how does that make the count Unconstitutional?

  10. TM01 says:

    @Gustopher: Ooh! I have a compromise idea!

    How’s about all you leftists make a Principled Stand and all refuse to fill out your census forms!

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  11. Scott says:

    @TM01: I believe there is some statistical adjustment to the numbers based on assumption of undercounts. However, in the past, this has been controversial by the right because of the belief that there has to be an actual count.

    So choose your poison.

  12. HarvardLaw92 says:

    @TM01:

    I have a compromise idea as well, but somehow I doubt there will be an ER anywhere in the country willing to remove it from your a** once you’ve inserted it there.

    The constitutional issues are moot. We’ll easily kill this silliness based on the APA arguments. If it makes you feel any better, consider it another attempt (and what will ultimately be a successful one) to cripple this administration’s ability to enact anything.

    They’re trying to skew political representation away from Democratic strongholds in an attempt to boost GOP political strength. It has nothing to do with enforcing any sort of law and everything to do with political shenanigans. They’re trying to f’k with us, and we’re f’king them back – hard.

    You should get used to it.

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  13. HarvardLaw92 says:

    @TM01:

    So what happens to me if I don’t send my form back in?

    Technically, you’ll be in violation of federal law and subject to civil fines of up to $5,000. You’ll almost certainly be visited by census workers as well before that happened.

  14. TM01 says:

    @HarvardLaw92: really? Wow.

    But what if I’ve worked hard my whole career? Will they let me if easy then? I’m going to retire in two days. There’s no way they’d fine me then.

  15. TM01 says:

    @HarvardLaw92: you and yours have been fscking people for a long time.

    You’ve been fighting for or ignoring the build up of executive powers. You’re just ticked off that it’s not your guy wielding those powers anymore.

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  16. Gustopher says:

    @TM01:

    How’s about all you leftists make a Principled Stand and all refuse to fill out your census forms!

    Actually, I was considering filling mine out, adding a fictional houseboy or two. One of those “be the change you wish to see in the world” moments.

    I really want a houseboy. Or two.

    And who is to say that on whatever day I fill out the census form I won’t have a houseboy, who would then leave before anyone could verify his existence?

  17. TM01 says:

    @HarvardLaw92:
    “Technically, you’ll be in violation of federal law and subject to civil fines of up to $5,000. ”

    That may be true, but fortunately places like California and Illinois won’t be able to report me to the federal authorities.

  18. SKI says:

    @TM01:

    It was asked for a long, long time, and was asked at least as recently as under Bill Clinton

    No, it wasn’t. It was last asked in 1950.

    For the first time since 1950, the U.S. Census Bureau is planning to ask everyone living in the United States whether they are citizens when it conducts its next decennial census in 2020

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  19. Timothy Watson says:

    @Leonard:

    Census information is absolutely secure for 72 years. It cannot possibly be used against you. The legal protections on it are on par with doctor-patient or spousal confidentiality. This is stupid. If the #partyofscience cares about good data, they should spend the next two years spreading the message to cooperate with census takers.

    Tell that to Japanese-Americans whose census returns from 1940 were used to intern them:
    https://www.washingtonpost.com/news/retropolis/wp/2018/04/03/secret-use-of-census-info-helped-send-japanese-americans-to-internment-camps-in-wwii/

  20. TM01 says:

    @SKI: wrong.

    It was on the long form in 2000.

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  21. TM01 says:

    @Timothy Watson: so, you’re saying we have a history of Democrats misusing census data.

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  22. TM01 says:

    @Gustopher:
    Well, then your false statements would be a violation of the law and cost you at least $5000.

    Go ahead tho. (I’ve saved a screenshot of your post to use as evidence at your trial. )

    Figures tho, I guess. Census fraud, voter fraud. You can’t win honestly so you have to cheat.

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  23. SKI says:

    @TM01: And the “Long Form” is: (a) not the mandatory census form and (b) now the ACS, the annual survey, where the census question is still asked.

    Presuming you aren’t stupid (I know, I know…), stop being deceitful.

    BTW, the fact that you never actually source/link your factual claims is a pretty big tell about your mendacious.

  24. KM says:

    I love how people like TM01 think they have clever talking points but it really just devolves to the meme of the day for them. It just goes to show the inherent trollish nature of the Trumpkin – they can’t talk about anything without trying to make it a lulz moment.

    Better question for you, snarky: if this question was so all-fired important, why haven’t other Republican Presidents forced it to be included in the general census? Why not Reagan or the Bushes? Why now?

  25. KM says:

    @Leonard:

    Census information is absolutely secure for 72 years.

    Bullsh^t. Nothing is secure for 72 years, not in this day and age. Before, we could make that promise because everything was literally sealed away – papers and equipment locked up away from prying eyes. Now, even the most secure databases need to fear hackers and the census is no different. Yes, the census is legally obligated to protect you data but using NRA logic, since when do laws stop criminals?

    Honesty is important for disclosure. Yes, the census will do everything in it’s power to protect your data but we cannot and will not give a 100% guarantee as that is impossible.

    The legal protections on it are on par with doctor-patient or spousal confidentiality.

    Do you have ANY idea how often that’s violated? HIPPA gets broken somewhere in the country every day, if not every hour. As someone who works in the medical field, you don’t want to know how many times I’ve seen violation letters go out, had to discipline people who broke confidentiality, and hold the stupid CPP class knowing somebody isn’t paying attention and will end up racking $10,000 per violation fines. Data not cleansed or personal info properly, emails /IMs “check out that weirdo patient!”, loudmouths in the breakroom regaling stories about the latest ER mishaps, etc.

    Doctor-patient confidentiality is only as good as the people involved in it. Same as the census – if it’s run by dirty people, why would you not expect the operation to be dirty too?

  26. Daryl's other brother Darryl says:

    @TM01:

    It was asked for a long, long time, and was asked at least as recently as under Bill Clinton.

    That’s just categorically incorrect.
    Are you un-informed? Or lying?
    If your opinion is based on BS…then your opinion is BS.

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  27. SKI says:

    @TM01:

    so, you’re saying we have a history of Democrats misusing census data.

    No, he said the United States Government.

    I don’t think there is a clearer indication of the rot within the our current politics than TM01’s comment here. He obviously subscribes and promotes to a belief that there is something fundamentally different and immutable about the people who belong to one party of the other – regardless of the fact that it has been more than 75 years since the events in question. He doesn’t see himself or anyone else as an American. He sees himself as a member of the Republican Tribe, thinks that is his actual identity and believes that people who aren’t members of his tribe are fundamentally different. SAD!

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  28. Charon says:

    @Leonard:

    Census information is absolutely secure for 72 years. It cannot possibly be used against you.

    Whether this is true is irrelevant. Many people will not believe claims that the information is secure, how people will behave based on their beliefs is the issue.

    The people at the top of the government have demonstrated that they are untrustworthy and do not feel bound by any laws they do not like, also well demonstrated is misuse of government authority and resources.

    @KM:

    Doctor-patient confidentiality is only as good as the people involved in it. Same as the census – if it’s run by dirty people, why would you not expect the operation to be dirty too?

    People’s behavior will flow from their expectations, which in this case will likely be of government malice and prejudice.

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  29. Tyrell says:

    @KM: I am not sure about the personal data but many groups use the stats and other data. Churches use it to study trends and preferences, and to pore over the local demographics.
    While I am back on this census question discussion, the next time I fill out a form and the question is right there: ” are you currently US citizen?” I will leave it blank and see what happens. Or maybe check “no”. That would probably get some attention.

  30. TM01 says:

    @Daryl’s other brother Darryl: you’re a frakking idiot. Try a simple Google search. “2000 census long form citizenship”

    The form is online.

    Just stop commenting. You’ve removed all doubt.

  31. TM01 says:

    @SKI: hey. I’m not the one saying the other party needs to literally be destroyed.
    People on the Left have been advocating a huge all powerful Central govt for decades.
    And now, despite Trump NOT actually acting like a dictator, you get all panicked and pearl clutching every time Trump does, well, anything. Roll back regulations? Hitler! Being back due process to college? Racist! Border security? Dictator! Ask a simple question? Deplorable!

    Obama’s pen and phone were great! Trump using his pen and phone merely to undo Obama’s Unconstitutional power grabs? Horrible!

    You hide behind your cry of American! as you insult, denigrate, and dismiss anyone who disagrees with you.

    But let’s talk about Russia now!

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  32. SKI says:

    @TM01:

    hey. I’m not the one saying the other party needs to literally be destroyed.

    Strawman much?

    People on the Left have been advocating a huge all powerful Central govt for decades.

    Another strawman. Show me any prominent Democratic politician or party platform advocating for that. You can’t.

    And now, despite Trump NOT actually acting like a dictator, you get all panicked and pearl clutching every time Trump does, well, anything. Roll back regulations? Hitler! Being back due process to college? Racist! Border security? Dictator! Ask a simple question? Deplorable!

    Trump is a racist. He has been for decades.

    He is rolling back regulations in ways a that are (a) improper for not following the APA, (b) in contravention of science and facts and (c) i ways that benefit contributors and lobbyists.

    If you want to talk about a specific regulatory rollback, we could actually have a discussion but you don’t. You;d rather speak in generalities and rant about unfairness. Basically, you are either a troll, profoundly stupid or both.

    Obama’s pen and phone were great! Trump using his pen and phone merely to undo Obama’s Unconstitutional power grabs? Horrible!

    Again, no specifics. What are you specifically calling unconstitutional? Because I can’t think of any.

    You hide behind your cry of American! as you insult, denigrate, and dismiss anyone who disagrees with you.

    But let’s talk about Russia now!

    WTF are you talking about and who are you talking to?

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  33. SKI says:

    @TM01: And as I pointed out above that “long form” is not the mandatory, Constitutionally required, census but now exists as the ACS.

    Conflating the two, especially as you have been informed of the differences, is simply lying.

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