Last month, a federal district judge held that the Trump administration repeatedly failed to comply with legally required procedures when it added a question to the 2020 Census form that is expect to discourage immigrant communities from participating in that Census. On Friday, the Supreme Court announced that it would hear an appeal directly from that district court’s decision.
Such a decision to bypass the court of appeals, and allow an appeal from a trial court directly to the Supreme Court, is unusual — though perhaps justified given the unusual circumstances of this case. According to the Trump administration, the federal government must finalize the Census form by the end of June, so there is an unusually strong case for rapid Supreme Court intervention here.
The case is Department of Commerce v. New York.
New York arises from the Trump administration’s decision to ask whether Census respondents are United States citizens — a question the Census has not asked on its primary form since the Jim Crow era. A bipartisan array of experts warned the administration not to ask this question, including Reagan and Bush administration officials who warned that the 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.”
Under the Constitution, representatives are allocated to states “counting the whole number of persons in each state” — regardless of citizenship or immigration status. Thus, if the citizenship question is permitted, the Census is likely to undercount the number of people in states with large immigrant populations, and those states will be underrepresented in Congress.
The primary issue in New York, however, is not constitutional. It is whether the Trump administration complied with the Administrative Procedure Act (APA) — a law governing the process federal agencies must use when they implement a policy change — when it added the citizenship question.
In a 277-page opinion striking down this question, Judge Jesse Furman describes a bumbling administration that misrepresented facts, ignored required procedures, and violated laws explicitly laying out how the Census must be conducted. One provision of federal law, for example, requires the Secretary of Commerce to “report to the relevant congressional committees, at least three years before the ‘census date’ for a given census, all ‘subjects proposed to be included, and the types of information to be compiled.’” Yet Secretary Wilbur Ross did not give Congress the required notice that he intended to include a citizenship question.
At another point, Judge Furman accuses Ross of offering a “pretextual” justification for the citizenship question — a polite way of suggesting that Ross lied.
Indeed, Furman’s opinion spots so many errors in the Trump administration’s process that it is possible the Census question could even be struck down by this Supreme Court.
Though the Court’s Republican majority is extraordinarily hostile to allegations that Republican officials acted with racist intent, Furman cautiously avoided the more inflammatory aspects of this case — that is, constitutional arguments that the Trump administration added this question to discourage Latinos from participating in the Census — and instead focused on the kind of hypertechnical procedural arguments that may attract Chief Justice John Roberts’ vote.
It’s worth noting that the Trump administration tried multiple times to halt this lawsuit before Furman could reach a decision, and Justice Clarence Thomas, Justice Samuel Alito, and Neil Gorsuch all sided with these efforts at least once. Nevertheless, it is notable that Roberts did not join with his most conservative colleagues — and it is still possible that he will affirm Furman’s decision.