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Supreme Court divided on citizenship question for census


The Supreme Court seemed divided along ideological lines Tuesday as the justices heard arguments about the Trump administration’s move to add a question about citizenship to the 2020 census.

All of the court’s four liberals sounded highly skeptical about Commerce Secretary Wilbur Ross’ decision, which three federal judges found illegal because it lacked a coherent explanation and could lead to a large undercount of noncitizens as well as Americans of Hispanic origin.

During the 90-minute court session, Justice Sonia Sotomayor was the most vocal critic of Ross’ action, saying it was fairly transparent that he wanted to add the citizenship question and then began fishing for a justification.

“This is a solution in search of a problem,” Sotomayor declared, blasting Ross’ approach as: “I’ve got to find a problem that fits what I want to do.”

“It did really seem like the secretary was shopping for a need,” Justice Elena Kagan added. “You can’t read this record without sensing that this need is a contrived one.”

Kagan suggested that the Justice Department is now trying to cover for lawyers’ amateurish defenses of Ross’ decision when it was announced in March 2018. She said Solicitor General Noel Francisco was making good arguments for why Ross might have added the citizenship question, but there was little evidence that they factored into the actual decision.


“Your briefs are extremely well done, but a lot of your arguments just do not appear in the secretary’s decision memo,” Kagan said. “And the fact that S.G. lawyers can come up with 60 pages of explanation for a decision, that’s all post hoc rationalization.”

After Francisco suggested that the courts should not meddle in Ross’ decision, Justice Stephen Breyer said there surely had to be some point at which a question is so bizarre and counterproductive to the count that it would be unlawful to add it.

“Suppose the Secretary puts in a question about sexual orientation. Suppose he puts a question in about arrest record,” Breyer asked. “Suppose he says, ‘I’m going to have the whole survey in French?’”

Most of the court’s conservatives appeared inclined to green-light Ross’ move, with Justices Neil Gorsuch and Samuel Alito appearing most hostile to states and civil rights groups’ legal challenges to the citizenship question.

Alito said he was convinced of deep flaws in estimates that adding the question could lead to roughly 5 percent fewer responses from noncitizens.

“I don’t think you to have to be much of a statistician to wonder about the legitimacy of concluding that there is going to be a 5.1 percent lower response rate because of this one factor,” Alito declared. He and Gorsuch said factors other than citizenship, such as income or socioeconomic status, might explain why noncitizens more frequently ignore census surveys.

Chief Justice John Roberts seemed to be in the same camp as Gorsuch and Alito, but was somewhat less strident in his questions.

Justice Brett Kavanaugh, who directed probing questions to both sides, seemed to give less away about his views of the case.

Roberts and Kavanaugh drew extra scrutiny from court-watchers Tuesday because last November, when the high court had the chance to head off the first trial on Ross’ decision, they appeared to side with the court’s liberals to let the trial go forward. Justices Alito, Gorsuch and Clarence Thomas said they would have halted the trial.

In one prickly moment toward the end of the argument, Sotomayor went after Francisco for suggesting that removing the citizenship question would allow groups to alter the census by “boycotting” any question they objected to. Americans who may object to the binary question on gender could try refusing to answer that query, he said.

“Are you suggesting that Hispanics are boycotting the census?” Sotomayor shot back. “Are you suggesting they don't have, whether it is rational or not, that they don’t have a legitimate fear?”

“Not in the slightest,” Francisco replied, while insisting that overturning Ross’ decision “would empower groups to knock off any question that they found particularly objectionable.”

The justices agreed to hear 10 minutes of argument Tuesday from the House of Representatives — the first such appearance since the House fell under Democratic control earlier this year. House General Counsel Douglas Letter began his argument by conveying Speaker Nancy Pelosi’s thanks for the courtesy.

“Tell her she’s welcome,” Roberts responded, to laughter from the audience.

Letter called the decennial census of the “utmost importance” to the House and insisted that no question should be added that could lead the head count to be less accurate.

“You can’t undermine the accuracy of the actual enumeration,” Letter insisted.

When Alito pointed out that any question could increase the length of the survey and prompt some people not to return it, Letter said there would be a “de minimis” exception that would cover that phenomenon.


Letter also complained that the Justice Department has argued that the court should butt out and leave the issue to the executive and Congress, but Ross and the Justice Department official who provided the voting-rights rationale, John Gore, have refused to cooperate with some congressional requests for information, citing the litigation.

Ross was not in the courtroom Tuesday, but Gore — now the No. 2 in DOJ’s Civil Rights Division — listened keenly to the exchange from the gallery.

Justice Clarence Thomas did not ask any questions, but he was not entirely silent. He and Breyer, who sit next to each other, had a quiet conversation on the bench. Moments later, Breyer could be seen passing Thomas a piece of paper.

Roberts — as usual — seemed irritated by Sotomayor’s aggressive questioning, urging that Francisco be given a chance to finish his answers. Roberts also glared at Breyer after a protracted question he asked.

While many of the court’s conservatives have railed against the use of foreign law in U.S. courts and the United Nations is often a focus of harsh criticism on the right, Gorsuch and Kavanaugh both noted that the United Nations has recommended that countries ask a citizenship question on national censuses.

“It’s a very common question internationally,” Kavanaugh observed.

Kavanaugh also asked New York Solicitor General Barbara Underwood whether Ross had the right to add the citizenship question even if it was uncertain whether the data would aid voting rights enforcement.

“If it's just unclear … that is not sufficient to pay the cost of the steep decline in the enumeration because the enumeration is, after all, the primary purpose of the census,” Underwood said.

Toward the end of the arguments, Kavanaugh might have signaled his bottom line by saying he believes Congress has given Commerce secretaries “huge discretion” to compose the census questionnaire.

At one point, Roberts faulted Ross’ critics for suggesting that the conclusions of Census Bureau statisticians were the only factors Ross could properly consider in making his decision.

“That’s the evidence. That’s the scientific evidence. There’s no room for the exercise of any discretion,” Roberts said somewhat sarcastically.

Alito complained that while Census staffers said they could use other data to collect more accurate citizenship data than would be produced by asking the question on the decennial survey, those experts were vague about how much more accurate it would be.

“They don’t provide a specific number. They don’t even provide a range,” Alito said.

American Civil Liberties Union attorney Dale Ho responded that the answers to the citizenship question tend to be wildly inaccurate in certain populations, making the use of that information highly suspect, especially for purposes of drawing districts and enforcing voting rights laws.rightsenforcement purposes.

“Data that’s wrong one-third of the time with respect to noncitizens just doesn’t help draw distinctions at a block-by-block level,” Ho said, arguing for civil rights groups challenging the question.

Federal judges in New York City, San Francisco and Greenbelt, Md., have blocked the Trump administration’s attempt to add the citizenship question to the 2020 Census — rulings that set up Tuesday’s showdown at the Supreme Court.

Time after time, federal judges have halted Trump’s immigration policies, but the administration hopes to find a warmer reception among the justices. Last June, the high court upheld Trump’s travel ban in a 5-4 decision that fell along ideological lines.

The Trump administration in late January called on the justices swiftly to take up the dispute over the citizenship question, arguing that the standard appeals process would take too long. The Census Bureau must finalize printed questionnaires by June 30 to meet production deadlines, the Justice Department said in a court filing.


The justices will consider several key issues raised in the lower court rulings, including whether the Commerce Department violated federal regulatory law when it added the citizenship question and whether the question runs afoul of the Constitution's enumeration clause, which mandates a census every 10 years to determine the composition of the House.

The stakes are high, even beyond the question of political representation: By one estimate, the 2020 Census will affect the national distribution of at least $883 billion in federal funds.

The Supreme Court in November had previously agreed to hear arguments over whether Ross and other officials could be deposed in the New York case, but dropped that from the calendar. Plaintiffs in the case yielded in their demand to depose Ross after the judge in the case ruled in their favor.

The Trump administration argues that the citizenship question must be added to help enforce the 1965 Voting Rights Act, which prohibits racial discrimination against voters. The Census Bureau already collects citizenship information through separate surveys, but the administration asserts that inclusion on the decennial census will improve accuracy.

Critics, however, contend that the administration’s true purpose is to strip immigrant communities of voting power and federal funding. Immigrant households will decline to answer the questionnaire, they say, which in turn will result in undercounts in immigrant communities.

In the first ruling against the question, U.S. District Judge Jesse Furman dismissed the Voting Rights Act argument as a mere pretext. Furman said that evidence presented in the case — including emails sent by Ross and other officials — demonstrated that the secretary planned to add the question before the Justice Department requested that it do so in December, 2017. As a consequence, Furman ruled, the process violated the Administrative Procedure Act.

During a March 2018 House committee hearing, Ross denied discussing the citizenship question with White House officials. However, administration attorneys later acknowledged in court documents that Ross recalled a request from former White House strategist Steve Bannon to discuss the issue with then-Kansas Secretary of State Kris Kobach, an immigration hard-liner.

Kobach later sent Ross an email in July 2017 that offered possible language for the citizenship question — five months before DOJ asked the Census Bureau to add the question.

The other two federal judges similarly ruled that the question violated the APA. They also found that, in diminishing the Census’ accuracy, the question was at odds with the Constitution’s enumeration clause.


Article originally published on POLITICO Magazine

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