Supreme Court Appears Poised To Uphold Census Citizenship Question

The Supreme Court's conservative majority appears poised to uphold the inclusion of a citizenship question on the 2020 Census.

The U.S. Supreme Court held extended oral argument today in the case challenging the Commerce Department’s decision to place a question regarding citizenship on the 2020 Census, a decision that was challenged by a number of state and local jurisdictions around the country, and which was soundly losing at the lower court level before reaching the Justices. By the time the extended session was over, it seemed apparent that a majority of the Court’s Justices were inclined to uphold the legality of the question:

WASHINGTON — The Supreme Court’s conservative majority seemed ready on Tuesday to allow the Trump administration to add a question on citizenship to the 2020 census, which critics say would undermine its accuracy by discouraging both legal and unauthorized immigrants from filling out the forms.

Justice Sonia Sotomayor said that adding the question would do damage to the fundamental purpose of the census, which is to count everyone in the nation.

“There is no doubt that people will respond less,” she said. “That has been proven in study after study.”

By one government estimate, about 6.5 million people might not be counted.

Solicitor General Noel J. Francisco, representing the Trump administration, acknowledged that the question could depress participation. But he said the information it would yield was valuable

“You’re always trading off information and accuracy,” he said.
Justices Neil M. Gorsuch and Brett M. Kavanaugh noted that questions about citizenship had been asked on many census forms over the years and were commonplace around the world.

But by the end of the arguments, which lasted 80 minutes instead of the usual hour, the justices seemed divided along the usual lines, suggesting that the conservative majority would allow the question.

Much of the argument concerned statistical modeling. “This gets really, really technical,” Justice Samuel A. Alito Jr. said.

The federal government has long gathered information about citizenship. But since 1950, it has not included a question about it in the census forms sent once a decade to each household. Adding it could reduce Democratic representation when congressional districts are allocated in 2021 and affect how hundreds of billions of dollars in federal spending are distributed.

Courts have found that Arizona, California, Florida, Illinois, New York and Texas could risk losing seats in the House, and that several states could lose federal money.

(…)

Wilbur Ross, the commerce secretary, has said he ordered the citizenship question to be added solely in response to a December 2017 request from the Justice Department, which said data about citizenship would help it enforce the Voting Rights Act of 1965.

Three federal trial judges have ruled that the evidence in the record demonstrates that Mr. Ross was not telling the truth. He had long before decided to add the question, the judges found, and he pressured the Justice Department to supply a rationale.

Justice Sotomayor suggested Mr. Ross had manufactured the reason.

“This is a solution in search of a problem,” she said.

Documents disclosed in the case showed that Mr. Ross had discussed the citizenship issue early in his tenure with Stephen K. Bannon, the former White House chief strategist and an architect of the Trump administration’s tough policies against immigrants, and that Mr. Ross had met at Mr. Bannon’s direction with Kris Kobach, the former Kansas secretary of state and a vehement opponent of unlawful immigration.

Over at SCOTUSBlog, Amy Howe agrees that there appears to be a majority prepared to uphold the Administration’s decision:

The Supreme Court heard oral argument this morning in the dispute over the Trump administration’s decision to include a question about citizenship on the 2020 census. The federal government says that the Department of Justice wants data about citizenship to better enforce federal voting rights laws. But the challengers in the case counter that asking about citizenship will lead to an inaccurate count, because households with undocumented or Hispanic residents may not respond. After roughly 80 minutes of often tense debate, the justices seemed divided along ideological lines, with the conservative justices appearing ready to uphold the use of the question.

Ross announced the decision to include the citizenship question last year. The question is not entirely new to the census: It was generally included on census forms from 1820 until 1950, while some households received forms that contained the question between 1960 and 2000.

(…)

Arguing for the federal government today, U.S. Solicitor General Noel Francisco began by stressing that the citizenship question has been asked on the census for nearly 200 years. But he was quickly interrupted by Justice Sonia Sotomayor, who pushed back. It hasn’t been included in the census sent to all households since 1950, she reminded Francisco, because every secretary of commerce and every statistician has recommended against asking it.

The other liberal justices then took turns with Sotomayor peppering Francisco with questions, often diving deep into the details of the case. Some justices focused on Ross’ decision to include the question even though the Census Bureau had told him that asking the question would lead to fewer responses and could make information about citizenship worse, rather than better.

Francisco responded that Ross had fully acknowledged both the advantages and disadvantages of asking the citizenship question on the 2020 census. The question before the court, he stressed, really boils down to whether Ross’ decision to bring back the citizenship question was reasonable – which it was.

Sotomayor was again skeptical, telling Francisco that the government’s rationale amounted to plucking out one sentence from the record and relying on it, while ignoring everything else that suggests that adding the question would reduce the accuracy of the data.

Justice Elena Kagan echoed Sotomayor’s concerns. The secretary of commerce can deviate from the Census Bureau’s experts, she conceded, but he needs a reason to do so. “I don’t see any reasons,” Kagan told Francisco. Instead, Kagan continued, it seemed more as though the Department of Justice’s need for the citizenship data was “contrived”; lots of civil rights officials at the Department of Justice, Kagan observed, have never asked for this data.

Arguing on behalf of the state and local governments challenging the decision to add the citizenship question, New York Solicitor General Barbara Underwood began by complaining that Ross had decided to add the citizenship question even though the documents on which he relied to make that decision contained strong evidence that doing so would lead to an inaccurate count. All the reasons that Ross has cited to justify adding the question, Underwood asserted, are false.

Chief Justice John Roberts pushed back, asking Underwood whether having the citizenship data wouldn’t affect enforcement of the federal Voting Rights Act. Isn’t this critical data, Roberts asked?
Justice Brett Kavanaugh noted that the United Nations recommends including a citizenship question. Not only has the United States often asked the question, Kavanaugh stressed, but other countries – including Spain, Germany, Mexico, Canada and Ireland – also ask about citizenship. Does this international and historical practice affect how we look at the decision to add the question? Kavanaugh queried.

Underwood responded that the information provided by the question is “very useful for a country to have.” But should it be included on the census, she countered, whose principal purpose is to count people, knowing that it will reduce response rates?

Justices Samuel Alito and Neil Gorsuch, however, pushed back against the idea that including the citizenship question, standing alone, was the root cause of a lower response rate. Citizens and noncitizens are different in a lot of ways other than whether they have citizenship, Alito observed: For example, there may be socioeconomic differences between a household with citizens and one with noncitizens, as well as language differences. So there may be other explanations, Alito suggested, for why households with noncitizens would be less likely to return their citizenship questionnaires.

As I have noted before, as a matter of policy there appear to be very few good reasons to put a question regarding citizenship on the census and several reasons for keep keeping it off altogether.

The first argument. of course, is that citizenship has nothing to do with the purpose of the Census itself, which is to count all of the people in the United States and to apportion those people among the states for the purposes of Congressional redistricting. This is established in Article I, Section Two, Clause 3 of the Constitution, which provides for a count of all of the people in the United States, and their apportionment among the states, without regard to whether these people are citizens or legal or illegal residents. These numbers are then to be used to apportion the membership of the House of Representatives. In more recent years, this count has also been used, with the authorization of Congress, by various Federal government agencies as a means of dividing revenue and other Federal-aid programs among the states based on population and need. Given this, there is a strong argument that the census itself, which now asks residents to answer a wide range of demographic questions, should include anything other than a question asking respondents to list the number of people residing in their home.

The second policy argument against such a question is one that has been raised by the states challenging the question’s placement on the Census. Specifically, they have argued that asking about citizenship on the census questionnaire is likely to lead Latino families especially to decline to participate in the Census or answer the questions of a Census Taker that may come to their door out of fear that such information will be used against them or members of their family even though Federal Law provides that the answers to Census questions from specific households must remain confidential for at least 70 years. These fears were almost immediately seemingly confirmed when it was announced in the wake of the decision to put the citizenship question on the ballot that it had plans to “cross check” the responses to the citizenship question with data from other agencies.

The only exceptions to this general rule are certain instances where the Bureau is permitted to share some data with certain other government agencies provided that the data is stripped of any personal identifying information. Exactly how those provisions of the law might square with any effort to use data from other government agencies to determine the accuracy of census responses is unclear from the information that’s been provided, but based on how the law reads it seems clear that sharing data with other agencies except in the limited cases permitted by law would be problematic at best.

Finally, there is the political impact that all of this could have going forward. The states challenging the law relied primarily on the issue of non-participation due to fears about data sharing in their lawsuits against the Trump Administration. The reasons for that seem obvious. If it turns out to be the case that Census participation is adversely impacted by the citizenship question. it is likely to adversely impact states such as New York, California, Arizona, and others that have large Latino populations who are already at risk of being undercounted due to the fact that they generally live in the shadows. As Michael Wines notes at The New York Times, this could have an impact on politics for decades to come.

These, however, are all policy questions that are not the proper purview of the Courts. The sole question before the Justices was whether or not including the Census question violates the Constitution or some provision of Federal law. On that question, there appears to be a solid majority of Justices ready to say that the answer is “no” and that there is no legal reason why the question should be allowed to go forward as planned. While there is, as I’ve said before. a risk in misreading the outcome of a case based on the questions asked at oral argument this appears to be one of those cases where it’s not much of a gamble. In any case, we will see what the Court actually decides when a decision is released, most likely near the end of the Court’s current term in June. In the meantime, you can read the pleadings in this matter at the SCOTUSBlog information page for this case.

Here is the transcript of the oral argument:

Department of Commerce v. N… by on Scribd

FILED UNDER: Borders and Immigration, Donald Trump, Law and the Courts, Politicians, Supreme Court, U.S. Constitution, 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. James Joyner says:

    That it’s perfectly within the Census Bureau’s power to include the question would seem obvious from the fact that it was done for so many years previously. I think the administration’s intent here is clearly nefarious but this Court has been inclined to ignore intent—even clearly stated intent—with this President and I think that’s even more likely to be the case with Kavanaugh taking Kennedy’s place.

    11
    1
  2. SKI says:

    These, however, are all policy questions that are not the proper purview of the Courts. The sole question before the Justices was whether or not including the Census question violates the Constitution or some provision of Federal law. On that question, there appears to be a solid majority of Justices ready to say that the answer is “no” and that there is no legal reason why the question should be allowed to go forward as planned.

    How? Numerous lower courts, sitting as finders of fact, determined that the Administration didn’t follow the Administrative Procedures Act. Nothing in the above article even addresses that.

  3. @SKI:

    And we’ll see how the Court handles the APA issues in its ruling. As it stands it doesn’t appear that those issues were a very big concern for either the conservative or the liberal Justices.

  4. Stormy Dragon says:

    Again, I’m wondering what would happened if someone responded to every question on the census form beyond that “how many people live here” question by invoking their fifth amendment right to remain silent.

  5. Kathy says:

    This is beginning to feel a lot like the decades prior to the Civil War, when all attempts to combat slavery were decided in the South’s favor.

    13
    2
  6. wr says:

    Can we finally stop pretending that this “court” is anything but a majority of right-wing hacks who will approve anything Trump wants and find some justification for it, no matter how meretricious. I know it causes our hosts pain to confront this sad fact, but how long do we have to maintain the fiction that this court is not as broken as the Republican senate?

    9
    2
  7. @Kathy:

    Worth noting that the citizenship question was asked on every census form for more than a century

    1
    1
  8. @wr:

    What legal argument is there against including this question on the Census?

    1
    2
  9. Daryl and his brother Darryl says:

    Justice Boof.

    2
    2
  10. Gustopher says:

    @James Joyner:

    That it’s perfectly within the Census Bureau’s power to include the question would seem obvious from the fact that it was done for so many years previously.

    You could make the same argument for discriminating against women, or not allowing gays to get married.

    Or drinking yourself to death, for that matter.

    Not saying the question is or is not constitutional, but your argument is terrible.

    Further, we have only in the past 30 years or so been applying a disproportionate impact test, so a practice that was considered reasonable back in the 1950s, 60-70 years ago, would have to be re-evaluated.

    8
    1
  11. Gustopher says:

    @Stormy Dragon: Who can prove that I won’t have a family of migrant undocumented immigrants living in my guest room when I filled out the census form?

    They might not be there if someone swings by to check a few months later, but they are following the chicken or blackberry harvesting season — I’m not sure where they are off to, I don’t speak Spanish very well.

  12. Kathy says:

    @Doug Mataconis:

    Yes, but long before there was a purge of non-citizens.

  13. Andy says:

    It seems clear to me there is no legal or constitutional reason why this particular question cannot be included. Which brings me to the most important sentence in your piece:

    Given this, there is a strong argument that the census itself, which now asks residents to answer a wide range of demographic questions, should include anything other than a question asking respondents to list the number of people residing in their home.

    Yes, I think the census should be limited to counting people and all the other demographic and other questions should be separated into a different survey. If the goal of the census is counting (and it is), then all the extraneous data collection should be stripped away.

  14. Scott says:

    Two thoughts:

    One, a census is constitutionally required. At what point is a census considered flawed or improperly done so as to be considered unconstitutional.

    Two @Kathy: Will John Roberts be the Roger Taney of the 21st Century.

    3
    1
  15. DrDaveT says:

    @Doug Mataconis:

    What legal argument is there against including this question on the Census?

    As Scott notes, there is a constitutional requirement for an enumeration of the inhabitants of the US. To the extent that adding this question would prevent the census being an accurate enumeration, the constitution requires leaving it off.

    (It probably also requires statistical estimation of the uncounted, but that’s a separate debate…)

  16. Stormy Dragon says:

    @Doug Mataconis:

    Worth noting that the citizenship question was asked on every census form for more than a century

    Did your law school not cover the difference between facial constitutional challenges and as-applied challenges? The question could be constitutional in general but unconstitutional in this case due to the actions of the administration (e.g. deliberately wanting to suppress the enumeration)

    5
    1
  17. Yixiao says:

    @Doug Mataconis:

    What legal argument is there against including this question on the Census?

    Section 1, Article 2, Clause 3 and an as-written interpretation of the Constitution? (I know that’s a unicorn, but it shouldn’t be.)

    The Constitution was (as I was taught in middle school) a description of what the government is allowed to do, not what they are prohibited from doing. The original intent was to say “If it’s not listed here, you can’t do it”.

    So the legal argument would be that Congress is only empowered to count (enumerate) people living in any jurisdiction.

    Enumeration: the act or process of counting something or a count made of something

    The legal argument would be that anything beyond a head count is not authorized, and is therefore unconstitutional. That legal argument will fail, but it is a valid argument to make.

  18. Andrew says:

    Statistically speaking: Old white men with money are far more dangerous than Mexicans, Central Americans, or South Americans. Muslim, Arab, or Mixed race men from Hawaii…

    What I’m trying to say, it’s a lot easier to see and know who the old wealthy white men are.
    This census move is just another step towards eating the rich. And they know it. They are just scared for their mansions, and yachts, golf courses, beach homes…unless the scary minorities are working at these places. Undocumented. Then it’s okay !

  19. Kathy says:

    @Stormy Dragon:

    The question could be constitutional in general but unconstitutional in this case due to the actions of the administration (e.g. deliberately wanting to suppress the enumeration)

    Unfortunately, as proved in the case of the Muslim ban, this court doesn’t consider the administration’s motives, even when they are explicitly stated on the record.

    3
    1
  20. Moosebreath says:

    @Kathy:

    “Unfortunately, as proved in the case of the Muslim ban, this court doesn’t consider the administration’s motives, even when they are explicitly stated on the record.”

    Nor are they willing to consider the bloody obvious actual effects of their decisions when it reaches a result that they want, as Shelby County vs. Holder made clear.

    5
    1
  21. An Interested Party says:

    The desperation among those in political power is so obvious…what happens when it becomes harder and harder for them to use their shrinking base to stay in power? Kathy made the exact right point when she wrote about this feeling like the decades before the Civil War…

  22. Modulo Myself says:

    @Kathy:

    Right, they only looked at motives when it was Colorado talking about conservative Christians. This should tell us the one direction the GOP has–create a balkanized American in which conservative white Christians enjoy a nebulous net of legal privileges and the ability to erase others WHILE meanwhile being the most victimized people in America.

    5
    1
  23. Kathy says:

    @An Interested Party:

    The desperation among those in political power is so obvious…what happens when it becomes harder and harder for them to use their shrinking base to stay in power?

    They have a lot of guns and Confederate flags. My great fear is they’ll think they have the military also.

  24. Gustopher says:

    @DrDaveT:

    (It probably also requires statistical estimation of the uncounted, but that’s a separate debate…)

    The constitution is pretty clear about enumeration, so estimation is out.

    I think that’s a bad policy, but it’s what it says. And it keeps the government from resting its finger on the scale too much. (The Trump administration might estimate that there are millions of undocumented immigrants living in rural areas)

  25. DrDaveT says:

    @Gustopher:

    The Trump administration might estimate that there are millions of undocumented immigrants living in rural areas

    I concede your point about the ‘enumeration’ language, but I have to push back a little here. “The Trump administration” has no control (and perhaps no influence) on the civil servants at the Department of Commerce who would be responsible for a statistical estimate of population. They also do not have the mathematical skills to do the work themselves in a way that would withstand the inevitable legal challenge from the ACLU or some similar organization.

    There is no “Deep State” in the sense of a conspiracy, but there is pretty universal loathing of Trump and his ‘administration’ among the federal workforce. I’m sure the furlough had nothing at all to do with that.

  26. Barry says:

    @Doug Mataconis: “What legal argument is there against including this question on the Census?”

    Doug, see the conversation before you asked this.

  27. Barry says:

    @Scott: “Will John Roberts be the Roger Taney of the 21st Century.”

    Yes and no. Yes in that he’s a partisan hack who is quite comfortable being a destroyer of Reconstruction; no in that he understands the stiletto.

    He has and will have arguments which lawyers can see are partisan and crazy; he won’t have too many which have quotable statements understandable to laymen.

  28. Tyrell says:

    @Kathy: “decided in the South’s favor”: there were other factors.
    The years before the Civil War (War Between the States as I learned in school) was also the time of the “Great Compromiser”: Henry Clay. He was the skillful architect and master mind of these famous and amazing compromises: the Missouri Compromise, the Tariff Compromise, and the Compromise of 1850. There was also the famous Three-Fifths Compromise. These forestalled and delayed hostilities between the North and South. (National Constitution Center, “Henry Clay, the Great Compromiser”)
    As the Union grew*, more western territories wanted to enter the Union. And that was the crux of the problem: would a new territory come in as a “free” state or a “slave” state? The leaders sought to keep a balance of power between the northern states and the southern states. They hoped that the slavery problem would take care of itself by somehow dying out in the future. Which could actually have happened. During the Civil War the price of cotton fell (over production, imports). If the war had not been in full swing, there was the distinct possibility that the Southern plantation system would have collapsed and would not have been able to sustain their economic system based on slave labor.
    Lincoln also floated a compromise to the southern leaders: basically it was stay in the Union and you can keep your slaves. They did not go for it.
    So our leaders did try to save the Union and prevent a breakup. Most people today would probably not know one thing about the famous compromises. In the current political age, compromise seems to be a bad word.
    * “Manifest Destiny, Manifest Destiny”

  29. SKI says:

    @Tyrell:

    So our leaders did try to save the Union and prevent a breakup. Most people today would probably not know one thing about the famous compromises. In the current political age, compromise seems to be a bad word.

    Those “compromises” were bad. They were ultimately flawed – both morally and practically.