Outside the Beltway

Supreme Court Accepts Appeal Of Case Barring Citizenship Question From Census

The Supreme Court will hear a case dealing with a challenge to the Commerce Department's decision to put a question about citizenship on the 2020 Census.

Doug Mataconis · Monday, February 18, 2019 · 7 comments

The Supreme Court has agreed to hear an appeal of a case on the challenge to the Trump Administration’s decision to include a question regarding citizenship on the 2020 Census:

WASHINGTON — The Supreme Court agreed on Friday to decide whether the Trump administration may add a question about citizenship to the 2020 census questionnaire that will be sent to every household in the nation.

The court’s move added a highly charged and consequential blockbuster to what had been a fairly sleepy term. The justices have mostly avoided controversy while they adjusted to the new conservative majority created by the arrival in the fall of Justice Brett M. Kavanaugh.

The federal government has long gathered information about citizenship, but since 1950, it has not included a question on it in the forms sent once a decade to each household. Last month, a federal trial judge blocked the Commerce Department from adding the question, saying that the process that led to the decision was deeply flawed.

The Supreme Court stepped in before any appeals court had ruled on the matter, and it put the case on an unusually fast track. The Supreme Court’s speed was almost certainly a result of a looming deadline — the census forms are set to be printed in June.

Without immediate action from the court, the solicitor general, Noel J. Francisco, told the justices, “the government will be disabled for a decade from obtaining citizenship data through an enumeration of the entire population.”

The Supreme Court scheduled arguments for late April, and it is expected to rule before the end of June.

The case — United States Department of Commerce v. New York, No. 18-966 — is the latest test of the scope of executive power in the Trump era. Last year, the justices upheld President Trump’s authority to restrict travel from several predominantly Muslim countries. More recently, the court rejected the administration’s request to reinstate a ban on asylum claims by immigrants who cross the southern border illegally.

On Friday, Mr. Trump said he expected his declaration of a national emergency to build a border wall to be challenged in court. He predicted that the administration would lose in the lower courts but prevail in the Supreme Court.

More from The Washington Post

The Supreme Court added a politically explosive case to its docket Friday, agreeing to decide by the end of June whether the Trump administration can add a question about citizenship to the 2020 Census form sent to every American household.

The census hasn’t asked the question of each household since 1950, and a federal judge last month stopped the Commerce Department from adding it to the upcoming count. He questioned the motives of Commerce Secretary Wilbur Ross and said the secretary broke a “veritable smorgasbord” of federal rules by overriding the advice of career officials.

Ross has maintained that the information is important for several reasons, including enforcement of the Voting Rights Act, and that he carefully considered the advantages and disadvantages of adding the question before making his decision.

Those opposed to the question argue the census response rate will likely fall if households are asked whether undocumented immigrants are present and make less accurate the once-a-decade “actual Enumeration” of the population required by the Constitution.

That could mean fewer members of Congress for states with large immigrant populations and less money from federal programs.

“The record in these cases provide overwhelming evidence that the administration’s goal in adding a citizenship question was to discourage and deter immigrants and communities of color from participating,” Kristen Clarke, president and executive director of the Lawyers’ Committee for Civil Rights Under Law, one of the groups that has challenged the decision, said in a statement. “At the end of the day, the census count stands as one of the most critical constitutional functions our federal government performs and this administration has taken extraordinary steps to jeopardize the possibility of achieving a full and fair count.”

The Trump administration had asked the court to bypass its normal procedures and accept the case immediately because it needs an answer by the end of June to print census forms and conduct the count on schedule.

Justices will hear the case in late April and review the 227-page opinion handed down by U.S. District Judge Jesse M. Furman of New York, rather than require it first to go through the U.S. Court of Appeals for the 2nd Circuit.

The Trump administration, as well as the 18 states, local governments and others challenging Ross’s decision, told the court that the decision was so important it warranted exceptional treatment.

As New York, the lead challenger, said in its brief to the court:

“The enumeration affects the apportionment of representatives to Congress among the states, the allocation of electors to the electoral college, the division of congressional districts within each state, the apportionment of state and local legislative seats, and the distribution of hundreds of billions of dollars of federal funding.”

Solicitor General Noel J. Francisco told the court that Furman had exceeded his authority.

The district court took 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 decide how the census is conducted, Francisco’s brief told the court.

“Indeed, to the government’s knowledge, this is the first time the judiciary has ever dictated the contents of the decennial census questionnaire.”

But Furman, and the states challenging Ross’s decision, said Congress has placed restrictions on what kind of information the secretary may seek, and the process for implementing it.

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,” Furman wrote.

Ross announced the decision to add the question in March. He said at the time that he was responding to a request from the Department of Justice, which said the information was needed to enforce laws protecting minority voting rights.

Later emails and depositions in the lawsuit showed Ross had discussed the issue with White House officials urging a crackdown on undocumented immigrants. Some showed he initiated contact with Justice Department officials, not the other way around.

The New York brief says Ross acted directly against the advice of career Census Bureau experts.

“For at least the last forty years, the bureau has vigorously opposed adding any such question based on its concern that doing so ‘will inevitably jeopardize the overall accuracy of the population count’ by depressing response rates from certain populations, including noncitizens and immigrants,” wrote New York Attorney General Letitia James.

And Amy Howe comments for SCOTUSBlog:

The dispute centers on the March 2018 announcement by Wilbur Ross, the Secretary of Commerce, that the 2020 census would include a question about citizenship. The Trump administration indicated that data collected from the question would help the U.S. Department of Justice to better enforce voting rights, but states and civil rights groups (among others) opposed the decision, countering that the question would make households with undocumented or Hispanic residents less likely to respond and would therefore lead to an inaccurate count.

The Supreme Court had already agreed last year to hear oral argument in a clash over the evidence in the case. In addition to the official records that Ross considered before deciding to include the citizenship question, the plaintiffs in the case – which include New York and other state and local governments – also wanted the trial court to consider other evidence, including by questioning both Ross and John Gore, who was then the head of DOJ’s civil rights division. In October, the Supreme Court prohibited the plaintiffs from questioning Ross but allowed them to question Gore and probe into other facts, and in November the justices granted the government’s request to review the evidentiary dispute, setting the case for oral argument on February 19.

But although the justices agreed to weigh in on the evidentiary dispute, they rejected the government’s request to put the trial in the case on hold. In January, the trial court issued a ruling that barred the government from including the citizenship question on the 2020 census.

Three days later, on January 18, the justices announced that they would not hear oral argument in the evidentiary dispute on February 19 after all, but they left open the possibility that they could return the case to their calendar later in the term.

One week later, the Trump administration asked the justices to review the trial court’s decision immediately, without requiring the government to appeal first to the U.S. Court of Appeals for the 2nd Circuit. The census questionnaire has to be finalized by the end of June, the government explained, which means that it would be virtually impossible to have the Supreme Court weigh in and reach a final resolution under the normal timeline.

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. This is the case that the Supreme Court has accepted for review.

In the opinion below, 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 on the form, thus making the entire Census more difficult and causing jurisdiction to lose out in terms of apportionment and the allocation of Federal aid.

It’s not typical for the Supreme Court to accept a direct appeal from a District Court, but the fact that this case deals with a major Federal program and that we’re approaching the time when planning for the Census will need to begin was likely one of the reasons why the Justices agreed to hear the case on what amounts to an expedited basis. Additionally, the fact that the Court had already agreed to hear a partial appeal of the case regarding a series of evidentiary rulings by the District Court likely led them to decide to accept the entire case for review. In any case, the Court’s regular argument calendar is already filled through April, which is usually the last month for oral arguments, so the Court will have to schedule a special day for the argument of this case either in late April or, more likely early May. That virtually guarantees that there won’t e a decision in this case until the end of the term in June or early July. Until then, you can follow the filings in the case, which is styled as Department of Commerce v. New York at the SCOTUSBlog information page for the case.