In a brief opinion joined only by Justice Clarence Thomas, Neil Gorsuch cast his lot on Monday with the Trump administration’s effort to rig the 2020 Census in order to reduce the political influence of immigrant communities. Should this plan ultimately succeed, it is likely to shift power towards white people and away from Latinos.
In re Department of Commerce involves a challenge to the Trump administration’s decision to ask respondents in the 2020 Census whether they are a citizen. A majority of the Court gave the administration a partial victory. Gorsuch would have handed the administration a much broader win.
For the last several decades, the Census did not ask this question due to fears that it would discourage non-citizens from responding. As the Census’ top officials cautioned during the Reagan and Bush I administrations, asking such a question “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.”
The Constitution requires an “actual Enumeration” of “the whole number of persons in each state,” regardless of each person’s immigration status. Thus, the Trump administration’s citizenship question arguably violates the Constitution because it could potentially prevent millions of immigrants from being counted.
The specific issue before the Supreme Court on Monday is whether high ranking Trump administration officials, including Secretary of Commerce Wilbur Ross and Acting Assistant Attorney General John Gore, may be deposed as part of a lawsuit challenging the citizenship question. Although it is unusual for a cabinet secretary to be deposed regarding a shift in policy, a federal judge ordered Ross to testify, citing concerns that Ross acted in “bad faith” when he described the reason for the citizenship question.
Although Ross initially claimed that the Justice Department requested the citizenship question to aid its enforcement of the Voting Rights Act, there is considerable evidence that this justification is a pretext, and that Ross only solicited the Justice Department’s views after he decided to move forward with the question.
In any event, Monday’s Supreme Court order hands the Trump administration a partial victory. It halts Ross’ deposition, at least temporarily, but allows Gore’s deposition to move forward — at least for the time being. The order is unsigned and no justice publicly dissented, though it is possible that one or more justices dissented during the Court’s internal debates.
Gorsuch and Thomas would have halted “all extra-record discovery pending our review,” cutting off the Gore deposition as well. But Gorsuch’s opinion also goes much further than that, suggesting that he and Thomas agree that the Trump administration should be able to add the citizenship question to the Census.
“Most censuses in our history have asked about citizenship,” Gorsuch claims, credulously suggesting that the citizenship question may be justified to help the Justice Department “enforce the Voting Rights Act of 1965.”
Gorsuch also defends Ross against allegations that the real reason for the citizenship question isn’t to enable enforcement of a voting rights law, but to actively discourage certain individuals from responding to the Census.
As evidence of bad faith here, the district court cited evidence that Secretary Ross was predisposed to reinstate the citizenship question when he took office; that the Justice Department hadn’t expressed a desire for more detailed citizenship data until the Secretary solicited its views; that he overruled the objections of his agency’s career staff; and that he declined to order more testing of the question given its long history. But there’s nothing unusual about a new cabinet secretary coming to office inclined to favor a different policy direction, soliciting support from other agencies to bolster his views, disagreeing with staff, or cutting through red tape.
Gorsuch is technically correct that “most censuses in our history have asked about citizenship,” but his opinion leaves out important nuance. The Census stopped asking this question in 1950, which means that the question hasn’t been asked in the decennial census since the Jim Crow era.
American immigration law, moreover, changed considerably over the course of American history. For much of that history, the concept of an undocumented immigrant simply didn’t exist. Nor did America spend lavishly on immigration enforcement as it does so today.
Until recently, moreover, many Mexican citizens engaged in “circular migration,” briefly working in the United States and then returning back home to Mexico across a much less guarded border. It wasn’t until the 1990s, when the United States significantly stepped up border enforcement, that these immigrants started to settle permanently in the United States — often building families here in the process — to avoid the risk of repeatedly crossing the border.
All of which is a long way of saying that, while a citizenship question may not have discouraged many immigrants from responding to the Census in 1940, it is likely to do so in 2020 because many undocumented immigrants fear they will put themselves at risk if they tell the government that they are non-citizens.
But Gorsuch appears to be either unmoved or unconcerned with this historical context. If a citizenship question was constitutional in 1790, then it must be constitutional in 2018, even if the facts on the ground have changed in fundamental ways.