Trump Citizenship Question on 2020 Census Blocked by Court

(Bloomberg) -- A federal judge blocked the Trump Administration’s plan to put a question about citizenship on the 2020 census, which will help determine U.S. elections, congressional seats and federal funding decisions for a decade.

The ruling comes after a two-week trial in Manhattan that the government sought more than a dozen times to derail. The Supreme Court may have the last word, though the court will have to move quickly to let the Census Bureau meet its June deadline to start printing the questionnaire. The high court is already scheduled to consider a preliminary issue in the case in February.

Critics of the question -- “Is this person a citizen of the United States?” -- said it was an attempt by Commerce Secretary Wilbur Ross to promote a Trump administration effort to undercount Hispanics and other minorities.

"Hundreds of thousands -- if not millions -- of people will go uncounted in the census if the citizenship question is included," U.S. District Judge Jesse Furman said in a 277-page opinion. "In arriving at his decision as he did, Secretary Ross violated the law," the judge said, adding the secretary also "violated the public trust."

The judge also ruled that Ross’s rationale for the change -- that it was to help promote enforcement of the Voting Rights Act -- was "pretextual." Furman said the decision violated the Administrative Procedures Act, a federal law that sets requirements for making changes to agency regulations.

The Justice Department said it was disappointed and still reviewing the ruling.

“Our government is legally entitled to include a citizenship question on the census and people of the United States have a legal obligation to answer,” Kelly Laco, a Justice Department spokeswoman, said in a statement. “Reinstating the citizenship question ultimately protects the right to vote and helps ensure free and fair elections for all Americans.”

First Lawsuit

Furman ruled in the first of several lawsuits filed by dozens of states and cities to block the question from the once-a-decade survey, where it hasn’t appeared since 1950.

"This ruling is a forceful rebuke of the Trump administration’s attempt to weaponize the census for an attack on immigrant communities,” the American Civil Liberties Union, which helped bring the case, said in a statement.

The Administrative Procedures Act requires an agency to "consider all important aspects of a problem," study relevant evidence and come to a conclusion supported by it, comply with procedures and laws, and explain the facts and reasons for the decision, Furman said. Ross’s decision "fell short on all these fronts," the judge said.

The states and cities, which were blocked by the U.S. Supreme Court from taking pretrial testimony from Ross, failed to prove the intent of adding the question was to discriminate against immigrants and minorities in violation of the U.S. Constitution, Furman said. Still, Ross committed "a veritable smorgasbord of classic, clear-cut APA violations,” he said.

Opponents of the inclusion of the question praised the judge, with Tom Wolf, leader of the census project at the Brennan Center for Justice, calling the ruling "incredibly careful, thorough and well-reasoned." Hans von Spakovsky, a senior legal fellow at the conservative Heritage Foundation in Washington, said the ruling was an example of "a federal judge once again interfering because he doesn’t like the policy."

"I don’t see how a judge can say there’s something wrong with wanting to get data on the number of citizens and noncitizens in the country because that information is, I think, vital to having an educated debate about immigration policy," he said.

Von Spakovsky said he thinks the ruling will be overturned by the Supreme Court.

Underlying Case

New York and a group of states, cities and public-interest groups sued in April. Underlying the plaintiffs’ case was the concern that noncitizens, mindful of the president’s rhetoric on immigrants, might decide not to answer the survey, worried the data could be used by federal immigration agents to target them or someone in their household -- even if they are in the U.S. legally.

About 14 percent of the U.S. population lives in households with one or more noncitizens, according to William Frey, a senior fellow at the Brookings Institution and an expert on the census, who isn’t involved in the case but opposes the inclusion of the question.

The Justice Department filed numerous requests to block or delay the trial, prompting Furman to call its efforts “puzzling, if not sanctionable” and to say they showed an “extraordinary lack of respect” for judicial norms. During the trial, the government argued that it’s up to the Census Bureau, not Furman, to determine what’s on the survey, and that if fewer people in immigrant communities respond to it, officials can use other means, such as government records and statistical modeling, to estimate their numbers.

Matthew Colangelo, a lawyer with the New York State attorney general’s office, argued at trial that including the question could “permanently impair core elements of our constitutional democracy” and that the trial’s outcome “will affect every community in this country.”

The Supreme Court’s Feb. 19 argument had been designed to test whether Furman could consider evidence outside the official Census Bureau administrative record, including possible testimony by Ross. But in his ruling Tuesday Furman said he didn’t need that evidence to reach his decision.

Brennan Center’s Wolf said he thinks the arguments may be pushed back by at least a few weeks so the court can also hear arguments on Furman’s final ruling. He said he’s "cautiously optimistic" the court will uphold Furman’s decision.

The case is State of New York v. U.S. Department of Commerce, 18-cv-2921, U.S. District Court, Southern District of New York (Manhattan).

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