Objection, you may not ask that question

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Most of the characters in the Harry Potter books refer to the arch villain as “he who must not be named.” Mentioning the wizard’s name was apparently considered bad form, if not downright dangerous. Only a few intrepid souls, including Harry, refer openly to the fiendish Lord Voldemort.

Similarly, there seems to be great reluctance to ask people being interviewed for this nation’s census whether they are US citizens – indeed no such question has been on the short census form (questions asked of all people interviewed versus a fraction) since 1950.

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Questions (click “next”) re ethnic background and sexual relationships are routinely asked, however, even though they seem more intrusive and are less clearly relevant to government responsibilities than inquiring about citizenship. The 2020 census, questions every US household will be asked, annotated, npr.org, updated 8/6/18.

After over a year of legal wrangling, with three district court judges ruling that the administration won’t be allowed to ask the citizenship question for the 2020 census, the issue was recently argued before the US Supreme Court. A decision will be handed down by June, which is said to be the practical deadline for inclusion of the citizenship question in the census short form that will be used next year.

How should this controversy be resolved? Let’s begin by considering the arguments that have been advanced against the citizenship question (CQ), recap the Supreme Court (SCT) argument, and then discuss the merits of the issue

A. Motivation – The Constitution (Article I, Section 2) provides for an enumeration of the population every 10 years, to be conducted in such manner as “[Congress] shall by Law direct.” Accordingly, there has been a decennial census since the founding of the republic.

Congress has in turn delegated broad discretion to the executive branch re the design and conduct of the census. Accordingly, Commerce Secretary Wilbur Ross should have had ample statutory authority to approve use of the CQ in the census unless (1) his motivation was corrupt, and/or (2) there was a compelling legal problem with this course of action.

The Commerce secretary has testified before committees of Congress about the CQ at least three times, and the government has responded to discovery requests in several pending lawsuits. There have apparently been inconsistencies in the information provided. For example, a claim that the CQ proposal was prompted by a suggestion from Attorney General Jeff Sessions that it would yield useful information for enforcement of the Voting Rights Act has been challenged based on evidence that Ross proposed the CQ himself long before the Department of Justice rationale was suggested.

Last fall, the SCT heard an emergency appeal by the government from a district court order in New York requiring that Mr. Ross submit to a deposition. The government maintained that the decision to use the CQ was “backed by a voluminous administrative record” so no inquiry into the Commerce secretary’s personal motivations was necessary. The SCT blocked Ross’s deposition, albeit without disclosing its inclination with respect to the substantive issues in the case. Justices block Ross deposition in census dispute, Amy Howe, scotusblog.com,

House Oversight Chairman Elijah Cummings and others recently demanded an explanation of the discrepancy. Wilbur Ross grilled over role in adding citizenship question to 2020 census, Dartunorro Clark, nbcnews.com,

“The key question we will ask Secretary Ross today is, what was he hiding from the Congress?" Cummings said. “What’s the real reason that the Trump Administration wanted to add this unconstitutional citizenship question?”

To the extent that pending attacks on the citizenship question are based on Secretary Ross’s presumed motivation, it doesn’t seem that a solid basis for an adverse finding has been established. Perhaps this would change if one of the district court challenges went to trial and Mr. Ross was called as a witness, but it appears that the SCT will decide the cases based on the existing evidentiary record.

Opponents of the CQ will therefore need to show that asking for it is not simply inappropriate, as has been claimed, but demonstrably illegal.

B. Legality – As previously stated, three district court judges – out of a nationwide total of hundreds of judges assigned to over 90 district courts - have issued rulings blocking the administration from using the CQ on the 2020 census. Hmm, doesn’t exactly sound like a majority (although we’re not aware of any district court judges who have affirmatively approved the CQ), but it has become increasingly common for district court judges to issue nationwide orders blocking the implementation of policy decisions of the president, cabinet secretaries, etc. Even if such orders are ultimately reversed by higher courts, they can delay proposed government policy changes for months or even years.

#NEW YORK (SOUTHERN DISTRICT) – DC Judge Jesse Furman blocked use of the CQ based on alleged violations of the Administrative Procedure Act in developing the proposal. He did not rule, however, that this question was inconsistent with the Constitution per se. And it appears that the principal thrust of his 277-page order was to question Secretary Ross’s motivation for supporting the CQ, wherefore the court was continuing to seek clearance (notwithstanding a preliminary determination by the SCT on 10/22/18) of a deposition of the Commerce secretary. Federal judge blocks Trump administration from adding citizenship question to 2020 census, Melissa Quinn, Washington Examiner,

In his ruling, Furman wrote that Ross’s rationale for adding the citizenship question was not for “enhancement of DOJ’s [Voting Rights Act] enforcement efforts," writing, “It follows that a court cannot sustain agency action founded on a pretextual or sham justification that conceals the true ‘basis’ for the decision. The Court can — and, in light of all the evidence in the record, does — infer from the various ways in which Secretary Ross and his aides acted like people with something to hide that they did have something to hide."

The scheduling of a SCT hearing on the deposition issue was subsequently subsumed by a general hearing on whether the CQ could or could not be used, so this aspect of the dispute was effectively resolved in the government’s favor. Argument preview: Justices will review challenge for census citizenship question, Amy Howe, scotusblog.com,

#CALIFORNIA (SF DISTRICT) – DC Judge Richard Seeburg went Judge Furman one better, ruling in a 127-page decision that the CQ had not only been issued in a manner contrary to federal law but was unconstitutional as well. The basis for the latter conclusion was that asking the CQ would serve to suppress responses by illegal immigrants and thereby serve to undercount them in the census results. Second federal judge blocks Trump administration’s citizenship question, Melissa Quinn, Washington Examiner,

This question would be “quite effective at depressing self-response rates among immigrants and noncitizens, and poses a significant risk of distorting the apportionment of congressional representation among the states,” which would “[threaten] the very foundation of our democratic system.”

#MARYLAND – DC Judge George Hazel reinforced the conclusions of the other two judges, finding violations of both the Administrative Procedure Act (essentially an attack on motivation) and constitutional requirements. Third judge [MD] blocks Trump administration from adding citizenship question to census, Melissa Quinn, Washington Examiner,

“The secretary’s own statements, along with the emails and documents contained in the administrative record, establish that the secretary was pursuing a citizenship question with urgency long before he had any awareness of the purported [Voting Rights Act]-enforcement rationale, which the record shows was manufactured by his staff,” Hazel said.

"At best," he continued, "the secretary ignored clear evidence that the citizenship question could harm the distributive accuracy of the Census for some mysterious reason known only to him. At worst, the secretary intended to negatively affect the distributive accuracy of the Census by reducing immigrant response rates to the Census. Both possibilities disregard the need to accomplish an actual enumeration of the population — the constitutional purpose of the Census."

C. Supreme Court argument – The SCT heard an 80-minute argument of the CQ controversy last week, which apparently will result in a split decision along ideological lines. Liberals will vote against the CQ, conservatives will vote that it may be used, and one or two justices (most likely Chief Justice John Roberts or Justice Brett Kavanaugh) will tip the decision one way or the other.

No broadcasting of SCT arguments is allowed, but there was a live audience of about 400 people. Here’s a scene-setting description. A view from the courtroom: counting to five, Mark Walsh, scotusblog.com,

Bar section (including the four advocates who will argue the case and their associates) – 76; VIP section – 18; court personnel – 12 plus an unspecified number of SCT police; law clerks of the justices – 12; public gallery – 200; press section – 70; justices – 9.

Many recaps of the arguments offered by counsel and reactions of the justices are available, including these: Divided court seems ready to uphold citizenship question on 2020 census, Amy Howe, scotusblog.com,
4/23/17. Supreme Court divided on citizenship question for census, Josh Gerstein & Ted Hesson, politico.com, 4/23/19.

Liberals supported arguments that (1) the DOJ rationale for asking the CQ had been made up after the fact, and (2) there was reason to believe that response rates of illegal immigrants to the survey might be reduced, e.g., by about 5%, if the CQ was used.

Conservatives brought out that (1) the government has a legitimate interest in determining how many residents are US citizens, and (2) the estimated reduction in response rates to the census by illegal immigrants was at best an educated guess of the government staffers concerned. While there might well be pros and cons to asking the CQ, Secretary Ross was entitled to weigh them and make a decision as to what course of action should be followed.

Which side will prevail? Seems like the decision could go either way, check back in June, but on the merits we would support the government’s position.

D. Discussion – Responses to the CQ would be helpful in tracking the cumulative number of illegal immigrants and appropriately administering the electoral system of the nation, both matters of legitimate interest to the government. There is nothing to indicate that this information would be used for some improper purpose, e.g., to track down and deport illegal immigrants, and if such a scheme did materialize it could be addressed at that time.

#ILLEGAL IMMIGRANT POPULATION - Don’t we already know how many illegal immigrants are in this country, e.g., 11-12 million? This statistic has been cited so often that it’s generally viewed as fact, but a recent study suggests considerable uncertainty about the true number (see chart below). Yale study finds twice as many undocumented immigrants as previously estimated, insights.com,

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Note that the starting point for the current data are information obtained from the Census Bureau.

The 11.3 million number is extrapolated from the Census Bureau’s annual American Community Survey. “It’s been the only method used for the last three decades,” says Mohammad Fazel‐Zarandi, a senior lecturer at the MIT Sloan School of Management and formerly a postdoctoral associate and lecturer in operations at the Yale School of Management. That made the researchers curious—could they reproduce the number using a different methodology?

To be complete, the researchers have concluded that the understated number of illegal immigrants reflects the tendency of many of the people concerned not to identify themselves. One could argue that use of the CQ would simply reinforce this tendency, thereby aggravating an underreporting problem that already exists.

It seems to us, however, that mainstreaming requests for citizenship information might well yield more reliable results. In any case, reinstating the CQ is a policy call that top administration officials like Secretary Ross should be entitled to make. Citizenship and the census, Wall Street Journal,

• Mr. Ross addressed the staff’s concerns in an eight-page memo. As he explained, staff could not quantify how much the question would reduce response rates due to confounding variables—staff’s best guess was 5.1% among noncitizens—and citizenship could not be imputed for the 25 million or so residents for which credible administrative records don’t exist.

• If a Census question must undergo up to a decade of “pre-testing,” as bureau staff and plaintiffs contend, then the secretary’s authority to conduct the Census “in such form and content as he may determine” would be vitiated. No Administration taking office in the last half of a decade could modify the Census.

#ELECTORAL SYSTEM – Although non-citizens are clearly not eligible to vote in federal elections, there is evidence that some illegal immigrants are voting and a growing number may do so in the future. Midterm issues: Immigration, Section III,
9/17/18. More reliable information on the number of illegal immigrants would seemingly be helpful in crafting policies to reduce the risk of such infractions.

At a state level, the Constitution apportions seats in the House of Representatives, and in part members of the Electoral College for presidential elections, based on total population. This includes not only citizens, but also noncitizens with a sufficiently permanent nexus with the area to qualify as inhabitants. Query whether anyone who enters the U.S. unlawfully, and is therefore subject to involuntary removal, can be “considered an inhabitant in the constitutional sense.” Should noncitizens be represented in Congress? David Rivkin & Richard Raile, Wall Street Journal,

Use of the CQ wouldn’t change the rights of the individuals concerned, but if the longer-term result was to cause illegal immigrants to be excluded in determining House seats and electoral votes, then cities and states with large populations of illegal immigrants would lose electoral influence versus other areas. This is a door that plaintiffs in the pending lawsuits clearly don’t want to see opened.

The current ground rules reward state policies designed to subvert the Immigration and Nationality Act and to achieve enhanced representation at the expense of more law-abiding states. Today’s case marks only the beginning of a larger debate over these questions.

Other areas would stand to benefit from changing the current ground rules, as evidenced by a letter from Steven Marshall, Attorney General of Alabama. Don’t count illegal residents for Congress, letters, Wall Street Journal,

After the 2020 census, Alabama—a low illegal-immigration state—is set to lose one of its seven House seats so that a state that encourages illegal immigration can gain one. The irony is that the seat will almost certainly be redistributed to a “sanctuary city” where there are more illegal immigrants and fewer eligible voters. We want the Supreme Court to end that practice and order an apportionment based on the original intent of the Constitution—based on legality, habitation and permanence.

Small wonder that this seemingly simple dispute about a question on the census form has attracted such widespread attention.


#The federal government should not only ask the citizenship question on the census, but also require citizenship proof for voting in all jurisdictions. – SAFE member (Delaware)

Comment: A federal requirement for citizenship proof would almost certainly require legislation, which isn’t likely to pass in the currently gridlocked Congress. This might be a good issue for 2020 elections.

#Trump stacked the Supreme Court in our favor so we get to change the laws. – SAFE director

Comment: Currently the SCT is pretty evenly split, as Chief Justice John Roberts seems to be evolving into a “swing vote” justice in the mode of Anthony Kennedy. On this particular issue, however, the conservative side deserves to win on the merits.

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