Citizenship and the census: What’s at stake in Supreme Court case

“Is this person a citizen of the United States?”

That is the question at the heart of several others the U.S. Supreme Court asked Tuesday in a case concerning whether it is lawful for the Department of Commerce to include a question on citizenship in the 2020 census.

In an expanded 80-minute-long argument, the justices probed a technically complex and detailed case that could have broad and long-reaching consequences for millions of people around the country. While the core issues in the case concern the next census specifically, and the purpose of a once-a-decade census generally, the issues the justices took most interest in today examined how much deference courts should give executive agencies and their presumed expertise in areas like census-taking.

Several members of the high court, across the ideological spectrum, have expressed an interest in curbing the power of administrative agencies. In the argument this morning, however, the court’s five conservative justices sounded more accepting of the government’s argument that Commerce Secretary Wilbur Ross didn’t overstep his authority in seeking to reinstate a citizenship question.

A dense, and unusual, factual record from the lower court caused some disagreement among the justices, however, in addition to the debate over whether Secretary Ross violated the authorities given him by Congress.

“A secretary can deviate from his experts’ recommendations and his experts’ bottom line conclusions,” said Justice Elena Kagan. “But the Secretary needs reasons to do that, and I searched the record and I don’t see any reason.”

The high court’s decision is likely to be one of the biggest of a relatively quiet term. Were the 2020 census to include a citizenship question, research by the Census Bureau found that the question would decrease responses from noncitizen households by at least 5.8%, leading to an undercount of approximately 6.5 million people – about the population of Tennessee.

An undercount of that size could mean that a half-dozen states, including California, Texas, and Florida, would lose congressional seats and Electoral College votes. Also, it could jeopardize hundreds of billions of dollars in federal funding to states for services that are used by all, such as health care and infrastructure. Polls, surveys, and decisions by businesses would also be affected, and since it would alter the census results, the consequences would be felt for a decade, if not longer.

“This is not just inside-the-Beltway business,” says Justin Levitt, a professor at Loyola Law School in Los Angeles. “It’s the basis for [political] representation, and it’s become the basis for our informational infrastructure. It’s the basis for who we are.”

The U.S. Census Bureau, a nonpartisan agency, has not asked the question on the census since 1950 (though it has asked a small subset of the population in the annual American Community Survey). But Secretary Ross indicated he was reinstating it after the Department of Justice said it needed “a reliable calculation of the citizen voting-age population” to better enforce the Voting Rights Act. Several states and nonprofit groups filed lawsuits challenging the move.

What followed was a legal fight over what information the Commerce Department had to turn over in court, followed by a trial. In mid-January, a federal judge in New York ruled that Mr. Ross had violated the Administrative Procedure Act by using a dubious excuse – the DOJ voting rights request – for reinstating the question. In early March, a federal judge in California ruled that a citizenship question was unconstitutional, and a federal judge in Maryland ruled the same in early April.

With the 2020 census form needing to be finalized by late June, the high court took the rare step of agreeing to hear it before an appeals court did.

Partisan lines

How the justices choose to interpret what the district court learned will be significant, and different interpretations became apparent almost immediately during today’s oral argument.

When U.S. Solicitor General Noel Francisco, arguing for the Commerce Department, opened by saying that a citizenship question had been asked on the census “for nearly 200 years,” Justice Sonia Sotomayor immediately cut him off.

“I’m sorry, it has not been a part of the survey since 1950,” she said. “And for 65 years, every Secretary of the Department of Commerce, every statistician, including this Secretary’s statistician, recommended against asking the question.”

Several questions on demographics were taken off the census around that time, Solicitor General Francisco said, but were asked on other Census Bureau surveys. A citizenship question has been asked on the American Community Survey, an annual survey sent to a subset of the population, since 2005.

Thus, he said, Mr. Ross “reasonably chose” by reinstating a citizenship question to the census.

Several justices sounded skeptical, referencing the Census Bureau estimate of non-response rates if a citizenship question is included. Mr. Ross “is told by the Census Bureau in three studies that if you ask this question on the regular form, you will get back fewer answers,” said Justice Stephen Breyer.

Justice Sotomayor referenced emails revealed in the lower court that showed how, prior to the DOJ requesting a citizenship question, the Commerce Department approached the DOJ about coming up with a reason for asking it. The DOJ said to ask the U.S. Department of Homeland Security, who in turn said it should talk with the DOJ, according to the emails.

“If the Department of Justice refused to listen to that, how can the Secretary conclude he’s complying with” the Census Act, added Justice Sotomayor. “This is a solution in search of a problem.”

Solicitor General Francisco expressed a different view of the lower court record. “There’s no evidence in this record,” he said, “that the Secretary would have asked had the Department of Justice not requested it.”

‘Is it arbitrary and capricious?’

When Barbara Underwood, the solicitor general for the state of New York, presented her argument for why reinstating the question violated federal law, Chief Justice John Roberts was the first to jump in. Wouldn’t a citizenship question help with enforcing the Voting Rights Act?

No, replied Solicitor General Underwood, since the Census Bureau had said that, due to the likely effect on response rates, a citizenship question would provide less accurate data.

"The Census Bureau says, ‘We're going to create a model ... trust us,’” said Justice Samuel Alito. “Is it arbitrary and capricious” – a standard at which Mr. Ross would be breaking the law – “for the secretary to say, ‘I’ll go with [the question]’?”

Both Justices Roberts and Alito ruled in favor of striking down part of the Voting Rights Act in the Shelby v. Holder decision, so “it is ironic” that they “are now eager for its enforcement,” Jennifer Nou, an administrative law professor at the University of Chicago Law School, said in an email. “It is also worth noting that the Trump Administration has thus far brought exactly zero Section 2 Voting Rights Act cases thus far – further suggesting pretext.”

Both Justices Neil Gorsuch and Brett Kavanaugh echoed Solicitor General Francisco’s point that many other countries, including Germany and Australia, ask about citizenship in their census. The United Nations also recommends countries ask about citizenship on their census, Justice Kavanaugh said.

“It’s certainly useful information for a country to have,” replied Solicitor General Underwood. “The question is whether it should be collected on [the survey] whose principal function is to count the population, when we have such strong evidence that it will depress that count.”

About that constitutional question ...

There were only a few occasions when the constitutionality of reinstating a citizenship question surfaced. The sixth sentence of the founding document charges the federal government shall make an “actual enumeration” of people in the country every 10 years. It is the first job the Constitution gives the government, before taxation, war powers, and making laws.

The high court prefers to avoid rulings on constitutional grounds when it can. Plus the lower court decision at question in this case found that the Commerce Department hadn’t violated the Constitution. Still Professor Nou says she is “surprised at how little attention the constitutional argument received.”

“The Court certainly seemed divided along partisan lines, suggesting a 5-4 decision in favor of allowing a citizenship question on the census,” she adds, impacting elections for the next decade.

“When the executive branch makes a decision with electoral consequences, it’s a good idea for courts to serve as a stronger check,” she continues. “If the Supreme Court fails to do so here, it will continue to be perceived as a partisan body.”