The 2020 Census will determine how many congressional seats each state receives, and play a major role in shaping where district lines are drawn. It will shape how much money states receive to build highways, to fund child care, and to provide health care to poor people — among many other things. It will also inform the decisions of private businesses about where they should invest.
So, naturally, the Trump administration wants to skew these numbers to benefit white people.
For decades, Census officials of both political parties warned against asking about citizenship status on the decennial census. As the Census’ top officials cautioned during the Reagan and Bush I administrations, asking about immigration status “could seriously jeopardize the accuracy of the census,” because “people who are undocumented immigrants may either avoid the census altogether or deliberately misreport themselves as legal residents,” while legal residents “may misunderstand or mistrust the census and fail or refuse to respond.”
By one estimate, as many as 24.3 million people may not respond to the Census if it includes a citizenship question. That’s despite the fact that the Constitution requires an “actual Enumeration” of “the whole number of persons in each state,” regardless of each person’s immigration status.
Which brings us to New York v. United States Department of Commerce, a lawsuit seeking to prevent the Trump administration from skewing the 2020 Census by including a citizenship question.
The complaint, filed by 18 attorneys general, six cities, and the U.S. Conference of Mayors, lays out a damning case against the citizenship question as a matter of policy. It also makes a strong case that the Trump administration made an end run around the Census’ ordinary procedures.
A more difficult question, however, is whether a judiciary controlled by Republicans will treat the Trump administration’s Census question as an effort to thwart an “actual Enumeration” of all persons within the United States, or whether they will look the other way at a policy that will shift power away from communities of color and towards whiter, more Republican ones.
There’s a reason why Republicans held a seat open on the Supreme Court for more than a year until Donald Trump could fill it, and a big part of that reason is lawsuits like this one.
They know exactly what they are doing
Before we dive into the details of the New York lawsuit, let’s dispel with this fiction that the Trump administration doesn’t know what it is doing. They know exactly what they are doing with this citizenship question.
The Census has not asked about citizenship since 1950. Since at least 1980, Census officials of both political parties repeatedly warned that asking about citizenship would, as the government explained in a 1980 lawsuit, “inevitably jeopardize the overall accuracy of the population count” by discouraging immigrants from participating.
As noted above, both the director and the deputy director of the Census repeated a similar warning during the Reagan and Bush administration. In 2009, all eight former Census directors stemming back to 1979 objected to a proposal to add citizenship and immigration questions to the Census, warning that even lawfully present immigrants might “avoid enumerators because one or more other household members are present unlawfully.” In a 2016 brief to the Supreme Court, a bipartisan group of four former Census directors warned that “a [person-by-person] citizenship inquiry would invariably lead to a lower response rate to the Census in general.”
This danger has only grown since Donald Trump took office — and the Trump administration itself seems eager to stoke these fears. In June of 2017, the Acting Director of U.S. Immigration and Customs Enforcement, Thomas Homan, told Congress that “every immigrant in the country without papers . . . should be uncomfortable. You should look over your shoulder. And you need to be worried.” A few months later, the Census Bureau itself published a memorandum warning that “fears, particularly among immigrant respondents, have increased markedly this year” and that such fears “have implications for data quality and nonresponse.”
A busted process
The Trump administration, moreover, allegedly rushed approval of the citizenship question, despite the fact that the Census ordinarily studies proposed changes to its questionnaire for years before moving forward with such a change.
The Information Quality Act requires the federal Office of Management and Budget to “issue guidance to federal agencies designed to ensure the ‘quality, objectivity, utility, and integrity‘ of information disseminated to the public.” Pursuant to these standards, the Census Bureau must design its questionnaire to “minimize respondent burden while maximizing data quality” and “achieve the highest rates
In the past, the Census Bureau took this obligation very seriously. According to the New York complaint, the Census “spent almost ten years developing and testing the content, specific language, and layout of just one proposed change to the question regarding race and ethnicity on the 2020 questionnaire.”
One purpose of this testing is to ensure that questions do not diminish the accuracy of the Census or encourage non-responsiveness. Another is to test multiple different versions of a proposed question to determine the most effective, least disruptive way to ask such a question.
And yet, with regard to the citizenship question the Census appears to have skipped this process entirely. According to the New York complaint, the Trump administration “added a demand for citizenship information to the 2020 questionnaire after less than four months of consideration,” and it “did not conduct any research into the potential performance of the citizenship demand, and did not test the impact of adding a citizenship demand on data accuracy.”
So what now?
Faced with this apparent effort to discourage immigrants from responding to the Census, the New York plaintiffs offer a few different legal theories. They claim that the Census has a constitutional obligation to “avoid unnecessarily deterring participation in the decennial census,” that the Census’ failure to abide by its normal procedures renders the citizenship question invalid, and that the Trump administration’s failure to adequately explain why it added the question renders the decision “arbitrary and capricious.”
In race discrimination cases, when the government takes an action that burdens a particular racial group in violation of the government’s ordinary procedures, and then compounds the matter by offering a highly dubious explanation for why it did so, courts will often infer that discrimination is the government’s true motivation. A court could just as easily infer that the government’s true purpose here is to frustrate a full enumeration of all persons living in the United States.
But, again, Republicans did not fight as hard as they did to get Neil Gorsuch on the Supreme Court because they thought his presence wouldn’t matter.
In cases involving voter ID laws, laws manipulating when people can vote, and, to a lesser extent, gerrymandering, Republicans on the Supreme Court have been reluctant to dig into why a state might have passed a law that makes it harder for certain people to vote — or to elect a candidate of their choice. There is a real possibility that they will refuse to see what is actually behind the Trump administration’s citizenship question as well.