Supreme Court Appears To Lean Toward Allowing Citizenship Question On The Census

WASHINGTON ― The Supreme Court appeared willing to allow the Trump administration to add a question asking every American household to identify citizens and noncitizens on the 2020 census. 

The court appeared split along ideological lines during oral arguments Tuesday. The court’s more conservative justices, including Chief Justice John Roberts, noted that the census asks many questions beyond simply counting people and that it didn’t appear unreasonable to add a citizenship question. The court’s more liberal justices noted that Commerce Secretary Wilbur Ross had failed to ever articulate a rationale for why adding the citizenship question was the best way to go about getting the data the Trump administration wanted.

The Census Bureau’s own experts estimate that an additional 5.8% of households with a noncitizen are unlikely to respond on their own to the census, which goes out to every American household just once each decade. That translates to approximately 6.5 million people. 

While the Trump administration says it will mitigate the decline in self-response through extensive follow-up efforts, experts say the most accurate data comes when people respond on their own.

An inaccurate census would have deep consequences; the data from the decennial survey is used to draw electoral districts and to determine how over $880 billion in federal funds get allocated each year. It also serves as a baseline for many pollsters to make sure that their samples are representative of the population. Businesses also rely on the data to make informed decisions about where they should expand and allocate resources.

In January, a federal judge in Manhattan ruled the process Commerce Secretary Ross used to add the citizenship question violated the Administrative Procedure Act, and he blocked officials from adding the question to the survey. The APA governs how agencies can implement policy and allows a court to review and block an action if it is “arbitrary, capricious,” or “an abuse of discretion.” U.S. District Judge Jesse Furman said Ross’ conduct clearly rose to that level, ruling Ross ignored and misconstrued evidence so he could reach his predetermined preference to add the question.

Two federal judges ― in California and Maryland, respectively ― have since also ruled the Trump administration violated the Constitution’s mandate that the census count all persons, in addition to running afoul of the APA.

But the Trump administration argues that Ross has broad discretion over what goes on the census and made the decision after weighing the benefits and drawbacks of doing so. Internal emails made public during litigation strongly undercut that rationale. The messages show Ross was interested in adding a citizenship question long before the Justice Department formally requested that he do so.

The Supreme Court expedited the case, Department of Commerce v. New York, because of the tight deadline the Census Bureau faces for printing the census forms. A ruling is expected by June. Census officials say they have two versions of the form, with and without a citizenship question, and will send to the printer whichever version complies with the court’s decision.

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