One of the most high-profile cases of the Supreme Court’s current term will be before the justices Tuesday when they weigh the legality of the Trump administration’s effort to add a citizenship question to the 2020 census.
The nine-member court — now with a 5-4 conservative majority — will hear 80 minutes of arguments in a legal battle mounted by 18 states, major cities, and immigrant rights groups, which argue Commerce Secretary Wilbur Ross violated the Constitution and federal law when he decided to include a question about citizenship on the census questionnaire.
The case marks the first time the Supreme Court will review a major Trump administration policy since it upheld President Trump’s order restricting travel to the U.S. from five Muslim-majority countries in June 2018.
A decision from the court is expected by the end of June, just in time for the federal government to begin printing the questionnaire for the 2020 population count.
The Constitution requires the government to count each person in the country every 10 years, and the data from the census is used to allocate seats in the House of Representatives as well as billions of dollars in federal funds.
Ross announced in March 2018 the 2020 census would include a citizenship question, the first time it would be on the form since 1950. The Trump administration argued the motivation behind adding the question was to ensure better enforcement of the Voting Rights Act and said a December 2017 memo from the Justice Department prompted the addition of the question.
But that assertion has since been scrutinized by the lower courts, where the Trump administration has suffered a string of defeats.
In January, a federal district court judge in New York blocked the Commerce Department from including the citizenship question on the 2020 census and said Ross engaged in a “veritable smorgasbord of classic, clear-cut” violations of the Administrative Procedure Act, the federal law at issue in the case.
Since then, two more federal judges — in California and Maryland — have ruled against the Commerce Department and blocked the administration from using the citizenship question. Those judges found that Ross violated not only the Administrative Procedure Act, but also the Constitution’s enumeration clause.
All three judges cast doubt on Ross’s reasoning for adding the citizenship question to the upcoming census and said he decided to do so long before receiving the Justice Department’s request.
“The unreasonableness of defendants’ addition of a citizenship question to the Census is underscored by the lack of any genuine need for the citizenship question, the woefully deficient process that led to it, the mysterious and potentially improper political considerations that motivated the decision and the clear pretext offered to the public,” U.S. District Judge George Hazel said in his ruling in the case out of Maryland this month.
Led by New York, the coalition of states suing the Trump administration warned that asking about citizenship on the questionnaire would lead to a population undercount that disproportionately harms communities with large immigrant populations.
Including the citizenship question could cause roughly 6.5 million people not to respond to the 2020 census, according to a study by the Census Bureau cited in court filings. Such an undercount, particularly of Hispanics and immigrants, could lead to the loss of U.S. House seats and billions of dollars in federal aid, the National Immigration Coalition told the Supreme Court.
In a friend-of-the-court brief filed with the high court, five former Census Bureau directors who worked in Republican and Democratic administrations cited analysis from the agency that found that a population undercount resulting from a citizenship question could cause Arizona, California, Florida, Illinois, New York, and Texas to each lose a House seat.
“[T]he adverse effect of the citizenship question will not be uniform across the nation, but rather will disproportionately affect particular racial and ethnic groups and particular geographic areas,” they said. “Those different levels of inaccuracy pose a significant threat to the accurate allocation among the states of seats in the House of Representatives.”
But the Trump administration argued Ross acted within his authority when he determined the 2020 census should ask about citizenship and considered the “potential downsides” of adding the question to the census before making his final determination.
In the end, the administration said, Ross concluded that the value of having more accurate data outweighed the impact on responses.
“That policy-laden balancing was a quintessential exercise of the secretary’s ‘virtually unlimited discretion’ to conduct the census and plainly was the ‘product of reasoned decision making,’” Solicitor General Noel Francisco, who is arguing on behalf of the Trump administration, wrote in a brief to the court.
The Trump administration also argued queries about citizenship or country of birth have been asked of a segment of the population on all but one census form from 1820 to 2000. The citizenship question itself, Francisco wrote, is “wholly unremarkable.”
Francisco also dismissed concerns by opponents of adding the citizenship question as “speculative fears that the government will act unlawfully by using answers to the citizenship question for law-enforcement purposes.”
Backing the Trump administration in the case is a group of 18 Republican-led states who told the Supreme Court the decision to add a citizenship question to the 2020 census will give them “superior data to use in their efforts to comply with the [Voting Rights Act], as well as reducing litigation surrounding [Voting Rights Act] compliance.”
Fear of the citizenship question, the coalition of states said, “is no reason to grind the census to a halt.”
