WASHINGTON – The Supreme Court on Tuesday takes up the term’s most important case to the Trump administration, whether it may add a question about citizenship to the 2020 Census form sent to every American household.
The census hasn’t asked the question of each household since 1950, and three federal district court judges have forbidden the Commerce Department from adding it to the upcoming count.
They say Commerce Secretary Wilbur Ross’s rationale for adding the question was pretext, and that he violated what one judge called a “veritable smorgasbord” of federal laws and rules by overriding the advice of career officials who said it would cause an undercount of the nation’s population, required each decade by the Constitution.
Ross has maintained that the information is important for several reasons, including enforcement of the Voting Rights Act. He said that he carefully considered the advantages and disadvantages of adding the question before making the decision, which Congress expressly empowers him to make.
The case has generated an outpouring of amicus briefs, filed mostly on the side of the states, cities and counties and immigrants rights groups challenging the decision.
They say the census has enormous impact. The count determines the size of each state’s congressional delegation. It informs how the electoral districts are drawn for those seats and others, and determines how billions of dollars in federal aid is distributed.
Critics – including experts at the Census Bureau who report to Ross – say adding the question will mean more households containing noncitizens are likely to ignore a request for information. Although the information is confidential, those with ties to undocumented people might not trust the information to the Trump administration, which has taken a hard line on immigration.
Experts calculated that adding the question could mean an undercount of as many as 6.5 million people and cause special harm to urban areas and states with large immigrant populations. California, for instance, worries it could lose as many as three congressional seats.
The three judges who ruled against Ross, all nominees of President Barack Obama, said Ross’s changing renditions of why the question should be added violated federal laws about administrative process. Two of the judges said his actions would result in a census tally so incomplete it would thwart the Constitution’s enumeration command.
Ross announced the decision to add the question in March 2018. He said at the time that he was responding to a request from the Justice Department, which said the information was needed to enforce laws protecting minority voting rights.
Later emails and depositions in the lawsuit showed Ross had discussed the issue with White House officials urging a crackdown on undocumented immigrants. Some showed he initiated contact with Justice Department officials, not the other way around.
But in its briefs to the court, the administration said Ross’s authority to add the question, rather than his motivations, is what is important. It said it would be unprecedented to have courts make such a decision, especially when it is based on the assumption that those receiving the census forms would not comply as legally required.
The case is Department of Commerce v. New York.