Federal Judge Blocks Citizenship Question From 2020 Census

A Federal Judge has blocked the Trump Administration from going forward with a plan to put a question about citizenship on the 2020 Census.

A Federal Judge in New York has issued an order blocking the Trump Administration from asking a citizenship question on the 2020 Census:

WASHINGTON — A federal judge blocked the Commerce Department from adding a question on American citizenship to the 2020 census, handing a legal victory on Tuesday to critics who accused the Trump administration of trying to turn the census into a tool to advance Republican political fortunes.

The ruling marks the opening round in a legal battle with potentially profound ramifications for federal policy and for politics at all levels, one that seems certain to reach the Supreme Court before the printing of census forms begins this summer.

The upcoming census count will determine which states gain or lose seats in the House of Representatives when redistricting begins in 2021. When the Trump administration announced last year it was adding a citizenship question to the census, opponents argued the results would undercount noncitizens and legal immigrants — who tend to live in places that vote Democratic — and shift political power to Republican areas.

In a lengthy and stinging opinion, Judge Jesse M. Furman of the United States District Court in Manhattan said that Wilbur L. Ross Jr., the commerce secretary, broke “a veritable smorgasbord” of federal rules when he ordered the citizenship question added to the census nearly a year ago. Judge Furman said Mr. Ross cherry-picked facts to support his views, ignored or twisted contrary evidence and hid deliberations from Census Bureau experts.

Judge Furman also criticized Mr. Ross and his aides for giving false or misleading statements under oath as they struggled to explain their rationale for adding the question.

The Trump administration argued in court that Mr. Ross had the power to add the question and that past surveys had asked about citizenship. On Tuesday, a Justice Department spokeswoman, Kelly Laco, said officials were disappointed by the ruling and were still reviewing it.

“Our government is legally entitled to include a citizenship question on the census and people in the United States have a legal obligation to answer,” she said in a prepared statement. “Reinstating the citizenship question ultimately protects the right to vote and helps ensure free and fair elections for all Americans.”

The Trump administration’s next move is unclear. Government lawyers could appeal the ruling or seek a stay in the United States Court of Appeals for the Second Circuit — or go straight to the Supreme Court and ask justices to intervene.

Roughly 24 million noncitizens live in the United States, and nearly 11 million of them do so illegally. Nearly one in 10 households includes at least one noncitizen. Evidence in the eight-day trial in November indicated that the question could deter not just noncitizens and immigrants from completing the census form, but Hispanics and others of foreign descent.

The 14th Amendment requires the House to be apportioned based on “the whole number of persons in each state,” and the Supreme Court has long ruled that the “whole number” includes noncitizens.

(…)

Mr. Ross, whose department oversees the Census Bureau, stated initially that he first examined the need for the citizenship question after getting a request from the Justice Department. In a letter to the Commerce Department, a senior Justice Department official stated that census data on citizenship would help the agency more precisely determine whether the racial or ethnic composition of political districts met the mandates of the 1965 Voting Rights Act.

Mr. Ross said his review of whether to add the question did not support warnings that it would lead to an undercount of noncitizens and minorities who feared disclosing their citizenship status to the government.

Judge Furman, who was nominated to the federal bench by President Barack Obama in 2011, all but demolished that explanation in his ruling.

Mr. Ross “materially mischaracterized” a conversation with a polling expert to make it appear that she did not object to adding the question to the census, Judge Furman said, and he kept Census Bureau officials in the dark about his desire for a citizenship question for nearly a year, forgoing any chance for a detailed study of its ramifications. The judge also rejected a sworn deposition on aspects of the question by Mr. Ross’s chief aide, Earl Comstock, calling it “misleading, if not false.”

But while Mr. Ross’s violations were “egregious,” Judge Furman said, there was not sufficient evidence to prove, as plaintiffs in the lawsuit had claimed, that he had deliberately sought to discriminate against noncitizens and minorities who were most likely to be affected by the citizenship question. In part, he said, that was because the Supreme Court had blocked the plaintiffs from taking sworn testimony from Mr. Ross about his actions.

In his ruling, Judge Furman said he could not discern Mr. Ross’s real reason for seeking to add the question to the census. But he said it was clear that Mr. Ross and his aides had decided within months of taking office in February 2017 that he wanted to add the question, and that the goal of the Justice Department letter “was to launder their request through another agency — that is, to obtain cover for a decision that they had already made.”

The addition, or as some would point out reintroduction, of a citizenship question to the Census has been a point of controversy ever since it was announced last March. At the time, many critics argued that it was meant to discourage Latinos, whether they are here legally or illegally, from answering the Census with the aim of reducing the number of people counted in predominantly blue states and thus influencing, even in a small way, the redistricting process that will take place in the wake of the Census itself. These concerns were seemingly reinforced when the Commerce Department announced plans to “cross-check” responses to the citizenship question with data from other agencies of the Federal Government, raising fears that the data might be used to harass certain segments of the population. As a result, as with many other controversial decisions on the part of the Trump Administration, it resulted in a number of lawsuits seeking to block the questions from being included. Within hours after the decision was announced, for example, California filed a lawsuit on the issue, arguing that asking the question would discourage minority response rates to the Census, which in turn would impact not just redistricting but also the allocation of Federal resources, which are often based on population estimates drawn from Census data. Roughly a week later, New York and seventeen other states filed their own suit challenging the question based on roughly the same grounds as the California lawsuit.

In essence, Judge Furman adopted the arguments that New York and the other states made in their Complaint in the course of writing his nearly 300-page opinion. Those claims included primarily the argument that the Federal Government would 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. It is also used to determine the distribution of many Federal programs that distribute money to the states, including things such as education funding. Perhaps the most important thing to take note of is the fact that the Census Clause 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 especially given the fact that it’s likely that including it could lead to a significant portion of the population to decline to answer any of the questions.

Judge Furman’s opinion is also notable to the extent that it rebukes Commerce Secretary Wilbur Ross and other personnel from the Commerce Department regarding their explanation for how and why the question ended up in their draft of the Census. In essence, the Judge largely rejects their explanations, which were contained in both public comments and Congressional testimony, in their entirety as not being credible and finds that there was substantial evidence in favor of the proposition that the real reason for including the question was something far different from what they claimed it was. As a general rule, it is extraordinary for a Federal Judge to rebuke the credibility of a witness like this in an opinion, and that is doubly true for a witness such as a member of the President’s Cabinet. Finally, the extent to which Furman picks apart what is essentially the basis for the Commerce Departments justification is so exacting and brural that it does not bode well for the government’s case going forward.

In any case, the Federal Government has two options. The first, of course, is to take the standard route of appealing this matter to the 2nd Circuit Court of Appeals. Alternatively, the Court could try to get the Supreme Court to accept a direct appeal, something that is of course entirely within the Court’s discretion and rarely granted. Given the fact that this involves an important question of Federal law, though, and that it’s something that will have to be resolved relatively soon given that the Census process begins in roughly a year, the Court could make an exception in this case. In the meantime, though, if this ruling stands the citizenship question will not appear on the Census form, which seems to me like the correct decision both for practical reasons and as a matter of law.

Here’s the opinion:

New York Et Al v. Dept. of … by on Scribd

FILED UNDER: Donald Trump, Law and the Courts, Politicians, 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. SKI says:

    I read the opinion yesterday. A few thoughts:
    1. Damn, the Judge is thorough. Painstakingly so.
    2. He definitely wrote the opinion with *both* eyes focused on appeal courts.
    3. Ross, like many other Trump appointees, is completely incompetent at being a Federal employee/leader. Zero understanding or appreciation for the APA.

    One quibble, Doug. Your comment that “While this doesn’t necessarily mean that Ross committed perjury during the course of his testimony” misses that Ross didn’t give any testimony in the trial proceedings (the SCOTUS matter was about the ability to depose him). It was that his public statements and Congressional testimony was not determined to be credible or accurate.

  2. @SKI:

    You’re correct. I’ve rewritten the paragraph to correct my error.

  3. Tyrell says:

    Do people have to answer questions on a US Census? Somehow I missed the last two censuses.
    Just what is the question exactly? I can’t find it anywhere.
    “11 million do so illegally” Unbelievable, mind boggling.

  4. Mister Bluster says:

    Do people have to answer questions on a US Census?

    You do support The Constitution for the United States of America don’t you?

    Article I Section 2 Par. 3
    The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct.

    13 U.S. Code § 221 – Refusal or neglect to answer questions; false answers
    (a) Whoever, being over eighteen years of age, refuses or willfully neglects, when requested by the Secretary, or by any other authorized officer or employee of the Department of Commerce or bureau or agency thereof acting under the instructions of the Secretary or authorized officer, to answer, to the best of his knowledge, any of the questions on any schedule submitted to him in connection with any census or survey provided for by subchapters I, II, IV, and V of chapter 5 of this title, applying to himself or to the family to which he belongs or is related, or to the farm or farms of which he or his family is the occupant, shall be fined not more than $100.
    (b) Whoever, when answering questions described in subsection (a) of this section, and under the conditions or circumstances described in such subsection, willfully gives any answer that is false, shall be fined not more than $500.
    (c) Notwithstanding any other provision of this title, no person shall be compelled to disclose information relative to his religious beliefs or to membership in a religious body.
    (Aug. 31, 1954, ch. 1158, 68 Stat. 1023; Pub. L. 85–207, § 15, Aug. 28, 1957, 71 Stat. 484; Pub. L. 94–521, § 13, Oct. 17, 1976, 90 Stat. 2465.)

  5. An Interested Party says:

    Hopefully the Supreme Court will leave this decision as it is…of course, that is the same court that decided Bush v. Gore, so I guess anything is possible…

  6. Moosebreath says:

    @An Interested Party:

    “that is the same court that decided Bush v. Gore, so I guess anything is possible”

    And more to the point, the same court which decided Shelby County, so anything to ensure Republicans win more elections is possible.

  7. Grumpy realist says:

    @An Interested Party: yes, the same decision in which SCOTUS said “don’t ever use this decision as precedent for anything!!!”

  8. Bruno Silutrabis says:

    This is not true as of update Aug., 2018 (link) https://assets.documentcloud.org/documents/4426784/pages/Planned-Questions-2020-Acs-p11-normal.gif

    ~~ I was in kind of funny mood and wondering if I, of Lithuanian decent was clumped together with Brits, Irish, Scots, or some other Nordic group of pink skin…in all actuality to create a silly “get on the band wagon” destruction of love amongst humans disparity post. Well yeah, profoundness is often entertaining.
    ~ In all the above twaddle, I searched for the 2020 census and I ran across the above link which is right clickd “view image” URL. ~~
    ~~ Silly to add that Lithuanians and buncha pink peeps are clumped in with Mid-eastern peeps. huh?

    Anyhoo, someone lied. It must have been previously taken off the 2020 census form since Aug. 2018, to create this thumb wrestle division cwap with Dondi.