Update: At oral arguments Tuesday, Chief Justice Roberts and Justice Kavanaugh, the two potential swing votes in the census case, both indicated that they were inclined to accept the administration's proffered rationale: that the citizenship question is necessary to enforce the Voting Rights Act. If that holds, the citizenship question will almost certainly be retained.
If the Trump administration succeeds in adding the question “Are you a U.S. Citizen?” to the 2020 census, the Census Bureau estimates that 6.5 million people won’t respond to the census at all.
Most of those will be Hispanics or people with immigrants in their families who are fearful of exposing themselves or their family members to deportation, investigation, or worse. According to a Harvard University study, between 7.7 and 9.1 percent of Hispanics will skip the census entirely.
And that, in turn, will lead to fewer representatives in the House from states with large Hispanic populations—like California, New York, Illinois, Arizona, and Texas—and, accordingly, fewer electors in the electoral college to choose a president.
It’s no exaggeration to say that the 2024 election could be decided on the basis of this census question.
That’s what’s at stake Tuesday as the Supreme Court takes up the case of Department of Commerce v. New York, representing four challenges to the citizenship question.
As we’ve learned over the course of those lawsuits, these anti-democratic effects of the question aren’t unintended consequences: they’re the whole reason it’s in there. Commerce Secretary Wilbur Ross, whose department oversees the census, lied about the reasons for the change, failed to follow the law on making it, and illegally ignored the opinion of the Census Bureau itself, which urged him against it.
If true (as several lower courts have found), these are violations both of administrative law and of Article I, Sections 1 and 2 of the Constitution, which provides that for the purposes of determining congressional representation, “The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct."
The “Enumeration Clause,” as it is known, has been held to require the government to get the best count possible. Here, however, Ross and his minions went against the advice of their own department, their own experts, and five previous directors of the census bureau (Republicans and Democrats alike), who said that the citizenship question would lead to an inaccurate count of how many people reside in the United States.
“The Census Bureau’s own analysis showed lower response rates, but Ross ignored them,” said Professor Jennifer Nou on a briefing call held by the American Constitution Society. “He either refused to consider evidence in the record, or actually falsified the record.”
As Ohio State University law professor Daniel Tokaji put it on the same call, “The record shows that he decided what he wanted to do first, and then came up with a pretext later.”
Ross has also baldly lied about the process by which the question was added. In March, 2018, he testified that the Department of Justice asked him to make the change so that they could better enforce the Voting Rights Act.
Turns out, that was false. In fact, Ross had asked DOJ send the letter to justify the policy change, and the real sources of the proposal were White House advisers Steve Bannon and Kris Kobach. (Ross also lied under oath about meeting Bannon and Kobach at all.) It was politics, in other words, engineered by two of the most ardent ethno-nationalists in the Trump White House.
The claims about the Voting Rights Act were just a pretext—a ruse. Which makes sense, because, as amicus briefs filed in Department of Commerce v. New York discuss in detail, there is absolutely no rational connection between a citizenship question and the Voting Rights Act.
In fact, the flimsiness of the pretext may be dispositive in the case. The Department of Commerce, like other administrative agencies, enjoys wide discretion under the Census Act—in which Congress delegated its constitutional responsibilities to the executive branch. Courts will not overturn an agency’s action simply because they think there’s a better way.
But if there is simply no conceivable relationship between the decision and its reason, that would fail even a deferential standard of review.
Professor Tokaji said the Voting Rights Act reason is “totally not true, which is why all three lower courts found that to be the case.”
In other words, even if it can’t be proven that Ross added the question for a discriminatory reason, if the reason he offers makes no sense whatsoever, and he blatantly ignored administrative law requirements in making it, that is enough for the question to be removed.
Again, the Constitution requires that all people be counted. If the Commerce Department changes the form in a way that leads to a worse count, that’s a violation of its statutory and constitutional mission.
Ironically, the Trump administration and conservative amicus groups are making the opposite argument in the census case from the one they made just a few weeks ago, in a case about deference to agency decisions. In Kisor v. Wilkie, they argued that agency decisions don’t deserve much deference—part of their overall effort to “roll back the administrative state.” Now, however, they argue that Secretary Ross deserves all kinds of deference, even if he failed to follow the law and clearly acted against his constitutional mandate.
The outcome of this case—congressional representation for ten years, electoral votes in the 2024 presidential election, and over $900 billion of federal aid that’s disbursed according to population—may come down, as many recent Supreme Court cases have, to that very question.
And recent cases have been all over the place.
Most infamously, in Trump v. Hawaii, Chief Justice Roberts allowed the so-called “travel ban” to stand, notwithstanding Trump’s countless promises to ban Muslims from entering the country, because the State Department came up with other reasons for the ban that didn’t discriminate on the basis of religion.
And more recently, the Supreme Court took the government at its word that transgender soldiers are a danger to the military, even though a yearlong Defense Department study showed that they weren’t, because a much shorter study slapped together by the Trump administration said so.
On the other hand, just two years ago, the Court struck down a Texas law requiring abortion clinics to have all sorts of unnecessary equipment and certifications, finding that Texas’s proffered reasons had no relationship to reality.
Interestingly, Professor Nou noted that the Trump administration has a far worse record in such cases than usual. Normally, Nou said, the government wins about 60% of cases reviewing agency decisions. “This administration is winning about six percent.”
That order of magnitude difference is a shocking statistic, but one that suggests that courts are doing their jobs. When it’s taken to court, suddenly the anti-science and anti-truth Trump administration bangs into reality. One can only hope, for the sake of the integrity of the electoral process, that reality wins this week.