Trump’s Census Citizenship Question Faces Test in Supreme Court Clash


(Bloomberg) -- Commerce Secretary Wilbur Ross was determined to add a question about citizenship to the 2020 U.S. census -- so determined that he committed a "veritable smorgasbord" of legal violations to get his way, according to a federal judge.

Now the effort by President Donald Trump’s commerce secretary is before the Supreme Court, which will hear the government’s appeal Tuesday in one of the biggest cases of the nine-month term. It will be the court’s first direct review of an administration initiative since the justices upheld the president’s travel ban last year.

The case thrusts Chief Justice John Roberts’s court into an intensely political fight that will affect the allocation of congressional seats and federal dollars. The case will test the court’s willingness to defer to an administration that critics say has a penchant for cutting legal corners.

In a book-length opinion in January, U.S. District Judge Jesse Furman said Ross committed a litany of violations of the federal law that governs administrative agencies. That law requires officials to make major decisions through a reasoned process and to give an honest explanation for their actions.

Ross "failed to consider several important aspects of the problem; alternately ignored, cherry-picked, or badly misconstrued the evidence in the record before him; acted irrationally both in light of that evidence and his own stated decisional criteria; and failed to justify significant departures from past policies and practices," Furman wrote.

Those who oppose a citizenship question say it could result in a census undercount in areas with large non-citizen populations that could shift congressional districts and shift federal funds away from those communities. California, Texas, Arizona, Florida, New York and Illinois all are at risk of losing at least one seat in the House of Representatives, according to Furman.

Furman is one of three Democratic-appointed federal trial judges who ruled against the administration in separate cases. With the Census Bureau saying it needs to start printing questionnaires this summer, the high court is hearing the case on an expedited basis, directly reviewing Furman’s decision and bypassing the appeals court level. A ruling is likely by late June.

Flipped Perspectives

The court has already indicated it might divide along ideological lines. In November, conservative Justices Clarence Thomas, Samuel Alito and Neil Gorsuch said they would have halted the trial in Furman’s courtroom. The pivotal votes probably belong to the other two Republican appointees, Roberts and Justice Brett Kavanaugh.

The case is likely to flip the court’s dynamics when it comes to the U.S. administrative state. In other contexts, the court’s conservatives have called for giving agencies less latitude, while the liberal justices have defended robust powers.

But the Trump administration says the census is a different matter. The administration points to a 1996 Supreme Court decision that unanimously upheld the Census Bureau’s decision not to statistically adjust its survey results.

That ruling said the Constitution "vests Congress with virtually unlimited discretion in conducting” the census. Congress in turn “has delegated its constitutional authority over the census” to the Commerce secretary, the court said. The Census Bureau is part of the Commerce Department.

U.S. Solicitor General Noel Francisco, who will argue the case for the Trump administration, says the 1996 ruling means federal judges don’t have any authority to second-guess the Commerce Department’s judgment about the census questions.

"Review of the contents of the decennial census questionnaire lies with Congress, not the judiciary," Francisco wrote.

‘Ordinary Constraints’

The citizenship question is being challenged by five organizations represented by the American Civil Liberties Union, as well as a separate New York-led group of states, cities and counties. They say Congress didn’t excuse the Commerce Department from the requirements of the Administrative Procedure Act, which agencies must follow in most other instances.

"Congress gave no indication that it intended to abrogate the ordinary constraints imposed by the APA," the ACLU-led group argued.

The U.S. Constitution requires a decennial census -- or an “actual Enumeration” -- but doesn’t provide any guidance about what information should be collected. Census-takers started asking about citizenship in 1820 but haven’t posed the question to every household since 1950.

From 1960 to 2000, a sample of the population was asked about citizenship. Since 2005, the Census Bureau has asked about citizenship in a separate annual survey sent to some people. The 2010 census didn’t include a citizenship question at all.

‘Mystified’ Ross

Ross said in a formal memo in March 2018 that he was reinstating the citizenship question at the behest of the Justice Department, which said the information would help with enforcement of the Voting Rights Act.

But Furman called that rationale a "pretext." His opinion said Ross pushed for a citizenship question within weeks of his Senate confirmation on Feb. 27, 2017. When his aides didn’t move quickly enough, Ross wrote in an email the following May 2 he was "mystified" that no progress had been made.

An aide then began what Furman called a "search for a rationale," asking the Justice Department to request that the question be included. The Justice Department eventually did so in a letter on Dec. 12, 2017, only after Ross spoke with then-Attorney General Jeff Sessions.

Furman faulted Ross for rejecting the conclusion of the Census Bureau’s scientific experts that a citizenship question would undercut the survey’s accuracy by causing people not to participate.

Francisco said Ross considered those arguments and rejected them as inadequately supported by the data and outweighed by the need for more citizenship information.

"That policy-laden balancing was a quintessential exercise of the secretary’s virtually unlimited discretion to conduct the census," Francisco wrote.

The Supreme Court case also raises constitutional questions, though the briefs don’t focus on those issues and they aren’t likely to play a prominent role in the argument.

The case is Department of Commerce v. New York, 18-966.

©2019 Bloomberg L.P.

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