Was it legitimate to add a citizenship question to the 2020 census?

By S.M. | NEW YORK

ON APRIL 23rd, almost a year after they heard arguments about a ban on travel from mostly Muslim countries, the justices will review a challenge to another Trump administration novelty. They will consider whether Wilbur Ross, the commerce secretary, violated the law or the constitution when he added a query to the census questionnaire that every household in America will receive in 2020: “Is this person a citizen of the United States?” Last June in Trump v Hawaii, a 5-4 majority upheld the travel ban against charges it was discriminatory by design. Now the justices will consider whether the citizenship question—which the government acknowledges will cause a significant undercount of immigrants and Hispanic Americans—was added for legitimate reasons and using the correct procedures. The Supreme Court's decision will be felt for a decade: census data dictate how congressional seats, electoral votes and $650bn in federal funds are divided up among the states.

Different statutes and constitutional provisions are at issue in Department of Commerce v New York and last year’s Trump v Hawaii. But both involve Congress granting wide discretion to executive-branch officials who then seem to offer questionable justifications for policy changes. The question this time is whether the justices will be as deferential to Mr Ross’s authority as they were to Mr Trump’s.

Mr Ross insists his decision to introduce the citizenship question in March 2018 was based on a request from the Department of Justice (DoJ). The data, DoJ said, was necessary to help it enforce Section 2 of the Voting Rights Act barring states from adopting voting practices that discriminate against racial minorities. The government argues there is ample precedent for to ask about citizenship on the census. From 1820 to 1950, with a brief interruption in 1840, each decennial census included a citizenship question, and from 1970 to 2000, the question appeared on the “long-form” questionnaire, a survey sent to one in six American households. Also, since its inception in 2005, the American Community Survey (ACS) sent annually to 3.5m households has asked about citizenship. Challengers may claim that Mr Ross had different motives for the rather last-minute addition to the census, but the government says there is no proof for the “extraordinary charge” that he “lied to Congress, the judiciary and the public” when explaining the change.

After considering lawsuits from a host of states, cities and civil-rights organisations, three federal judges—in New York,California and Maryland—rejected Mr Ross’s account. Each court blocked the addition of the citizenship question, though there were some variations in the reasoning. Judge Jesse Furman’s methodical ruling in January (in the New York case) was rooted in the Administrative Procedures Act (APA), a law laying out the rules when federal agencies like the Department of Commerce wish to adopt new regulations. The California and Maryland rulings, meanwhile, relied on both the APA and the constitution’s Enumeration Clause (also known as the Census Clause)—an instruction to Congress to conduct an “actual enumeration” of everyone living in the country every ten years.

Judge Furman’s decision drew on evidence that Mr Ross came up with the Voting Rights Act justification belatedly and disingenuously. Mr Ross first expressed an interest in adding the question “shortly after his confirmation” as secretary of commerce in February 2017, Judge Furman wrote, when he discussed the matter with Steve Bannon, Mr Trump’s erstwhile adviser. The team then “pursued that goal vigorously for almost a year” with no evident concern for the Voting Rights Act. Only months later did it seem to occur to Mr Ross that he would need a pretext for adding the question, so he asked the DoJ to make a formal request. It took some time, but the agency came through on December 12th 2017. In addition to that questionable timeline, Judge Furman’s decision documents the “veritable smorgasbord” of procedural irregularities associated with the roll-out of the citizenship question. Given those deficiencies, Mr Ross’s move was “arbitrary and capricious”, in violation of administrative law.

The other two rulings against Mr Ross add a constitutional violation. “It is conservatively estimated”, Judge George Hazel wrote on April 5th, that adding a citizenship question will spur a “differential decline in self-response for households that contain a noncitizen [of] 5.8 percentage points” and “Hispanic self-response will decrease by a magnitude of approximately 8.7 percentage points”. These estimates—which mean that millions of immigrant and minority households are likely to ignore the survey, for fear they could be targeted or deported—come from the Census Bureau itself. The government acknowledges the lower response rates but say it is worth it: “even if there is some impact on responses, the value of more complete and accurate [citizenship] data derived from surveying the entire population outweighs such concerns”. But for Judge Hazel and for Judge Richard Seeborg, altering the census form for “no reasonable governmental purpose” when the expected result is a large undercount of the individuals living in America amounts to a violation of the opening lines of Article I of the constitution.

The government does not cite Chief Justice John Roberts’s opinion in Trump v Hawaii in its brief, but one of the central defences of Mr Ross’s suspicious moves matches up well with the majority’s analysis of Mr Trump’s travel ban. Even if Mr Ross could be said to have had nefarious political motivations for adding the citizenship question—undercounts of immigrants and Hispanic Americans could lead to their underrepresentation in Congress as well as deflated federal funding for their communities—all he needs to show is some plausible reason for the change. “[T]he mere fact that the secretary had additional reasons for his actions” beyond the voting-rights justification, the government’s brief argues, does not render it illegal. Compare this to Chief Justice Roberts’s line in Hawaii that there were “national security concerns” involved in Mr Trump’s travel ban “quite apart from any religious hostility”. If the administration cites some reason for its action, the chief concluded, “we must accept that independent justification”.

If the Supreme Court’s conservative majority adopts a similar line in Department of Commerce v New York, the lower court decisions will dissolve and the citizenship question will appear on the census when the forms start rolling out of printers this summer. But if the justices take in all the evidence, they are likely to afford Mr Ross less indulgence than they did Mr Trump on the fulfilment of his campaign promise. As an amicus brief from several prominent legal scholars notes, the government’s reasons for adding citizenship to the census “collapse on even cursory inspection”.