The Court is hearing oral arguments Tuesday on whether the Trump administration broke the law by deciding to ask about citizenship on the mandatory 2020 census.
The Trump administration wants the 2020 census, which will be distributed to all people living in the United States next spring, to ask, “Are you a citizen of the United States?” A group of blue states led by California and New York emphatically do not want a census citizenship question, because they’re worried it will make their residents less likely to return their census forms — and thus hurt their apportionment in Congress after the 2020 census results are tallied.
On Tuesday at 10 am Eastern time, the Supreme Court is hearing oral arguments on who should prevail.
Of course, it’s not that straightforward from the Court’s perspective.
The census lawsuit — arguably the biggest case of this Supreme Court term — raises several levels of legal questions about how government agencies are allowed to make decisions, and how closely the courts (or anyone else) can question the decisions once they’re made.
And the Court doesn’t have much time to figure out the answers. While most lawsuits work through lower courts for years before hitting the Supreme Court, this one was accelerated to the highest level barely three months after a federal judge in New York first ruled that the Trump administration could not ask about citizenship on the 2020 census.
The unusual procedure is justified by the fact that it simply can’t wait. Shortly after the Court’s deadline to issue a ruling on the citizenship question — when the term ends in late June — final census forms will be sent to press. The Supreme Court’s word on the question, even more than usual, will be final.
Has the census asked about citizenship before?
The Trump administration claims that the citizenship question is standard, arguing that it’s been on every recent census except the 2010 census. Its critics claim that the citizenship question hasn’t been asked since 1950.
They’re both right, in a sense.
The Census Bureau collects a lot of data that goes beyond the basic mandatory every-10-year count — information that then gets used for congressional funding allotments, as the basis for other federal and academic research, in carving up congressional districts within a state, and in deciding the total number of Congress members the state gets. And while the government is prohibited from using sampling or modeling for the “actual enumeration” of how many people live in the United States, the Census Act actually encourages it to use demographic sampling to collect all this other data.
For a while, the government collected part of that data at the same time as the census: Five out of every six households on the government’s massive census list got the basic “short-form” version of the census, and the sixth got a “long-form” version that asked them extra questions about the people living in their household.
The citizenship question was on the standard “short-form” census through 1950. After 1950, it was moved to the “longform” census, so only a minority of census respondents got asked about it.
After the 2000 census, the government decided to get rid of the longform census and replace it with the smaller but more frequent American Community Survey. The ACS only goes out to 2.5 percent of Americans — way fewer than the longform census — but it’s conducted every year. At present, that’s our primary source of official information about how many citizens live in the US.
So the Trump administration is correct that the only decennial census that didn’t include any questions about citizenship was the 2010 census. But the critics are correct that not since 1950 has the government asked everyone in the United States to declare their citizenship status in order to participate in the constitutionally mandated decennial count.
The central policy question, therefore, is whether the American Community Survey — the sampling-based, more frequent survey that can’t be used for allotting seats in Congress — gives the government all the information it needs about citizenship, or whether it needs to have mandatory, enumerated official census data. The administration, of course, argues it needs both. Its critics argue that asking about citizenship on the census even though it’s already in the American Community Survey violates a legal requirement not to ask census questions that the government already has sufficient data on.
Why is the citizenship question controversial?
There are two big problems with asking all census respondents about citizenship: the way the information could be used in future, and the impact it will have on the quality of the census itself.
The biggest concern raised by voting rights advocates about information use is that the citizenship data could be used by state governments in drawing legislative districts.
The census doesn’t determine who gets to vote, but it does determine how votes count. And voting rights advocates fear that generating citizenship data from the “actual enumeration” of the census would give the federal government the information it needed to apportion congressional seats based on how many citizens lived in each state, rather than how many people — something that would likely hurt Texas and California.
It could also encourage state efforts to draw congressional districts based on citizen population. The Supreme Court has routinely ruled that states are allowed to use total population when drawing districts — including in a 2016 decision where the Court sided 8-0 with Texas’s use of total population — but it hasn’t explicitly said they have to.
A conservative state government that wanted to allocate its representatives based only on people who could vote would already be able to do that using ACS data (because redistricting, unlike reapportionment, is allowed to use sampled data). But it would be that much easier if that data were part of the essential census package.
The more fundamental problem, though, is that people won’t respond to the census at all if citizenship is included.
To be clear: The concern raised by voting rights advocates is not that noncitizens’ census data would be used to deport them. (For one thing, the question wouldn’t distinguish between legal and unauthorized immigrants.) It’s sort of the opposite: that people would be so worried about how their information would be used that they wouldn’t respond at all.
Census Bureau experts were already concerned about Latinos being undercounted in the 2020 census. In 2017, a bureau researcher flagged to a census advisory committee that focus groups and field tests were having serious problems getting immigrants to complete the survey.
During one field test, a respondent fled her home when she started getting worried about the questions. Another family moved abruptly after an interview with a census employee, and others halted the questions or deliberately lied.
Typically, a researcher could address a problem like this by tweaking the statistical model: assuming that more Latinos lived in an area than turned in their census forms because of this dynamic. But because of the “enumeration” requirement, the census isn’t allowed to do any modeling. The count is the count.
Why did the Trump administration add a citizenship question to the census?
It depends on whether you take the administration at its word or not.
No one is disputing that the Trump administration has the authority to add questions to the census. What was at issue was the way the Trump administration went about making the decision.
Officially, the request to add a citizenship question to the census came from the Department of Justice in December 2017. The DOJ’s reasoning was that to appropriately enforce the Voting Rights Act, the DOJ needs to know where eligible voters, and specifically eligible voters of color, live — and so they have to be able to distinguish citizens from noncitizens.
Many federal circuit courts have decided that in Voting Rights Act suits, allegations that a state has diluted the minority vote have to be backed up with stats on the citizen voting-age population — not just the total population. Right now, the federal government and voting rights advocates have to rely on ACS data instead of census data to make that case.
There are good arguments that the ACS isn’t a great basis for Voting Rights Act suits. For one thing, it offers multiple estimates at once (one-year, two-year, and five-year averages); for another thing, because it keeps generating new data throughout the decade, it doesn’t mesh with the decennial redistricting process as well as the decennial census does.
But critics of the Trump administration are skeptical that those good reasons are Jeff Sessions’s reasons. And the records exposed in the New York lawsuit made it clear that their skepticism was well founded, because Wilbur Ross and the Commerce Department hadn’t been telling the public the whole truth about that process.
Emails showed that for months, Ross himself had already been asking around about adding a citizenship question — and Commerce Department officials had tried to get other agencies involved to “clear certain legal thresholds.”
Furthermore, the emails showed, Ross was warned about potential downsides of adding a new question — most notably, concerns that it would warp the census results by discouraging noncitizens from responding. In Judge Jesse Furman’s views, by adding the question anyway, Ross either ignored that evidence or claimed it didn’t exist.
That raises the question of what the Trump administration’s real motive was. Many Trump critics see it as another obvious case of Trumpist racism, or a deliberate attempt to screw over blue states by weakening their census response rates. But legally speaking, the Court doesn’t have to believe that the administration was motivated by racism — or even have to have an alternative answer for the “real motive” behind the citizenship question — to rule against it.
Why is this case coming up now?
In one sense, it might seem that the Supreme Court is addressing the census at the last minute — a field test (including the citizenship question) is set for June, and the final 2020 census forms need to go to print this summer.
But on Supreme Court time, it’s actually been a very quick case.
The Court agreed to let the case skip the first level of appeal (the circuit courts) and go straight to the Supreme Court from the lower (district) courts. The Trump administration has asked the Supreme Court to do this on other cases, but it hasn’t agreed. In this case, though, it was clear that if the Court waited until next term to take up the citizenship question, it would be too late — the forms would have to be printed according to the lower-court ruling, banning the administration from moving forward with the citizenship question.
The flip side of this is that the Supreme Court is taking up a case with a lot of different moving parts at the last possible minute for this term. It will only have two months before the session ends in late June to answer all of these questions definitively — without being able to work off appeals courts’ rulings as it typically does.
What are the questions the Supreme Court has to answer in the census lawsuit?
The Supreme Court has assigned itself a mess of legal and procedural questions from multiple lawsuits over the census in order to get a ruling out in time for forms to print. So here are the questions that the court has 80 minutes to address on Tuesday (and then about two months to answer with a ruling).
Before getting to any of the specific questions in this case, the Court has to address whether the plaintiffs in this case (led by the blue states suing the administration) even have the legal right to sue over the citizenship question. If the Court finds the plaintiffs haven’t shown they’d be harmed if the question were included, the case goes to the government by default. In this case, though, the states are on pretty solid ground: because the allocation of members of Congress among the states post-census is zero sum, depressing Latino census response would hurt states that have more Latinos in them.
Does the citizenship question violate the constitutional requirement that the census provide an actual enumeration of the number of people in the United States?
This is the only aspect of the case in which the Supreme Court is deciding whether the citizenship question is constitutional, not just whether it’s legal under statutes passed by Congress. But it was added to the case at the last minute. The initial ruling halting the citizenship question in New York didn’t address the issue of constitutionality, so it wasn’t among the questions the Supreme Court initially took up.
A second ruling from a judge in California, however, did find that the citizenship question would violate the constitution: because it would depress Latino response rates, it would keep the census from being a true enumeration.
Normally, the Supreme Court would have been able to take up the initial questions posed by the New York court this term, and the constitutionality question next term. But because of the timing crunch — remember, forms have to be printed in the next few months — it needed to address all of it together.
Was the Trump administration’s decision to add a citizenship question to the Census “arbitrary and capricious,” violating the Administrative Procedure Act?
This is where the question of why the Trump administration wanted the citizenship question to begin with — and whether it lied — becomes central.
Generally, in theory, courts aren’t supposed to get a veto over decisions made by executive branch agencies just because the courts think the decision is a bad one. But under US law, a court can strike down an agency decision that is “arbitrary and capricious” — even if it doesn’t violate any other laws.
The Trump administration argues that it provided a plausible rationale for asking about citizenship in the Census — that the Department of Justice wanted the data to better enforce the Voting Rights Act.
The problem, of course, is that we now know that wasn’t the whole story. The evidence turned over in the lower-court case showed not only that Secretary Ross started asking about a citizenship question shortly after being confirmed, but that Commerce Department staff tried to get other agencies involved in the process to “clear certain legal thresholds.” To Judge Furman, those records — combined with the fact that other Census Bureau officials were warning that a citizenship question would end up hurting the census more than it helped — were extremely suggestive evidence that the Voting Rights Act was just a pretext, and the citizenship question was added purely because the administration wanted to.
The Trump administration argues essentially that the Voting Rights Act didn’t have to be the only reason, or even the initial reason, to include a citizenship question — but as long as it was a legitimate one, it should prevent the court from judging whether the question is legal.
Did the Trump administration violate the Census Act’s mandate to use existing data “to the maximum extent possible” instead of adding census questions?
Congress tried to keep the census from getting too long by requiring the government to use existing data sources, including supplemental surveys like the American Community Survey, “to the maximum extent possible” before adding a question to the mandatory census form. The plaintiffs (and lower-court judges) say that by asking a citizenship question that was already on the ACS, the Trump administration is violating this statute.
The administration argues that since existing data doesn’t impute the citizenship status of everyone in the US, it’s not good enough — and that, logically, having both existing records and new census data is better than just having one. The counterargument to that is that if adding a citizenship question depresses Latino response rates, it won’t actually be all that helpful to the government.
Did the Trump administration violate the Census Act by not notifying Congress about the citizenship question three years in advance?
The Census Act requires that Congress get a list of planned census subjects three years in advance, but “citizenship” wasn’t included in the list of subjects Ross sent to Congress in March 2017. (It was included in a list sent in March 2018.) The administration argues that the Census Act allows the Commerce Department to add new subjects after sending a report to Congress; lower courts, however, pointed out that’s only supposed to happen when new information or circumstances arise, and the administration didn’t prove to lower courts’ satisfaction that was the case here.
Was it appropriate for the lower courts to require administration officials to testify in the lawsuit?
Even though the New York trial has already been completed, the Supreme Court is still looking at whether it was appropriate for Furman to make administration officials testify — and whether it hypothetically would have been legal for him to force Ross himself to speak. Legally, most of the questions above are supposed to be answered through the “administrative record” that already existed before a lawsuit is filed — instead of dragging officials up to the stand and grilling them on their motives — unless there’s already evidence of “bad faith.”
The Trump administration still wants the court to state for the record (and for future precedent!) that the census question didn’t meet that standard, and therefore existing records should have been sufficient.
Are Trump’s tweets going to come up in the census lawsuit?
Probably not, at least this time. As many questions as the Supreme Court is considering Tuesday, there’s one it’s leaving out: whether Ross was motivated by “racial animus” in adding a citizenship question, violating the constitutional guarantee of “equal protection under law.”
That’s because none of the lower-court rulings against the administration so far have ruled on the racial animus question. They’ve punted on it. So the Supreme Court doesn’t have to take up something that isn’t an active legal question right now.
But that means that in theory, there’s a legal loose end. The plaintiffs in one census lawsuit have appealed a lower court’s decision not to address racial animus to the Fourth Circuit Court of Appeals. In theory, the Fourth Circuit could rule this summer that racial animus was a factor in the census decision — meaning the Supreme Court would have to take up one last census issue just as forms go to press.