Legal Supreme Court deals blow to Trump's push to add citizenship question to census

The Supreme Court on Thursday dealt an unexpected blow to the administration's attempt to add a citizenship question to the 2020 census, prompting a threat by President Donald Trump to try to delay the count.

In a surprising decision, Chief Justice John Roberts joined the court’s liberals in ruling that official explanations for the move were implausible and legally inadequate. The high court returned the case to lower courts for further action, raising doubts about the administration getting the go-ahead to add the question before upcoming deadlines to finalize the census questionnaire.


Roberts said the administration failed in its duty to provide a “reasoned” explanation for the decision. “What was provided here was more of a distraction,” he asserted.

Several lower courts previously found that the administration violated federal regulatory law when it added the question.

The administration argued that citizenship data will assist with anti-discrimination provisions in enforcement of the 1965 Voting Rights Act. However, critics contend that immigrant households could skip the census over fears the information could be used to scrutinize their legal status.

Roberts wrote in the majority opinion that the administration’s rationale appeared to be “contrived“ and suggested that Commerce Secretary Wilbur Ross presented a misleading reason for adding the question when he said it had been requested by Justice Department officials to protect the rights of minority voters.

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“In the secretary’s telling, Commerce was simply acting on a routine data request from another agency,“ he wrote. “Yet the materials before us indicate that Commerce went to great lengths to elicit the request from DOJ (or any other willing agency). … We are presented, in other words, with an explanation for agency action that is incongruent with what the record reveals about the agency’s priorities and decisionmaking process.“

The ruling effectively invites the administration to make another decision on whether to add the question to the census and to develop a new record justifying that decision. It's unclear whether Commerce Department officials could complete that process and sustain it through further legal challenges in time to get the question onto the 2020 questionnaire.

Justice Department lawyers repeatedly told the courts that census questions needed to be finalized by the end of this month in order to produce print versions of the questionnaire. However, a Census Bureau official said that process could be delayed to as late as October with additional funding for the decennial count.

Trump, who was traveling in Japan for a economic summit when the ruling was released, lashed out against it on Twitter and said he would try to delay the census to get the question on the form.

Seems totally ridiculous that our government, and indeed Country, cannot ask a basic question of Citizenship in a very expensive, detailed and important Census, in this case for 2020. I have asked the lawyers if they can delay the Census, no matter how long, until the….. — Donald J. Trump (@realDonaldTrump) June 27, 2019

“Seems totally ridiculous that our government, and indeed Country, cannot ask a basic question of Citizenship in a very expensive, detailed and important Census, in this case for 2020,” the president wrote. “I have asked the lawyers if they can delay the Census, no matter how long, until the United States Supreme Court is given additional information from which it can make a final and decisive decision on this very critical matter. Can anyone really believe that as a great Country, we are not able the [sic] ask whether or not someone is a Citizen. Only in America!”

While the census is mandated by the Constitution, federal law calls for the count to be taken “as of the first day of April” next year. Traditionally some surveying begins before that date and efforts to track down those who don’t return the forms continue for months afterwards.

On a call with reporters Thursday, several civil rights advocates insisted the administration doesn‘t have enough time to undertake another effort to add the citizenship question to the census.

"If they try to do this over the weekend, I think that is a clear sign of cutting corners in a way that does not comport with reasoned decisionmaking,” said Dale Ho, an attorney with the American Civil Liberties Union who argued against the question before the Supreme Court in April. "There really, really is not time, and if the administration tries to rush it, that's a clear red flag."

Vanita Gupta, a former Obama Justice Department official and current president of the Leadership Conference Education Fund, seconded that.

"I don't see how this administration can walk away and suddenly start, sort of tabula rasa, with a whole new set of rationales,” she said.

However, other opponents of the question made the opposite case earlier this week. A pair of civil rights groups suggested in a letter to the Supreme Court that the administration did not face a firm cutoff to finalize the questionnaire and should allow lower court proceedings to continue. The groups — the Mexican American Legal Defense and Educational Fund and Asian Americans Advancing Justice — argued the administration’s stated June 30 deadline “is unsupported by the record.”

Whether the administration will try to add the question again remains unclear. Kelly Laco, a Justice Department spokeswoman, said in a written statement that the department was disappointed by the decision but “will continue to defend this administration’s lawful exercises of executive power.”

A census undercount could mean a decrease in federal funds to immigrant communities. In addition, states with more foreign-born residents could be allotted a smaller number of representatives in the House.

A working paper released Monday by U.S. Census Bureau researchers found the addition of the citizenship question likely will reduce responses of non-citizen households by 8 percent, a higher rate than the bureau‘s earlier estimate of 5.8 percent. The lower participation would depress the overall response rate and lead to increased costs and lower-quality data, the report found.

The court conservatives who would have upheld the citizenship question warned that the ruling against it would open a Pandora’s Box of court-led inquiries aimed at divining the true motives of federal government decisionmakers.

“This conclusion is extraordinary,” Justice Clarence Thomas wrote, joined by Justices Neil Gorsuch and Brett Kavanaugh. “The Court engages in an unauthorized inquiry into evidence not properly before us to reach an unsupported conclusion. Moreover, each step of the inquiry offends the presumption of regularity we owe the executive.”

Thomas suggested the court’s majority was surrendering to “the din of suspicion and distrust that seems to typify modern discourse,” effectively opening any agency decision to second-guessing by federal judges using vague standards.

Justice Samuel Alito went further in a separate opinion, saying he would have ruled that Ross’s decision isn’t even open to challenge under the law judges used to invalidate it, the Administrative Procedure Act.

Rep. Lucille Roybal-Allard (D-Calif.) joined other Democrats in praising the decision, but added that the Democrat-controlled House would “fight any further efforts to sabotage a fair and accurate 2020 Census.”

A Manhattan-based federal judge in January blocked the addition of the citizenship question, freezing the Commerce Department’s plan to add it to the upcoming census. In the case, U.S. District Judge Jesse Furman dismissed the administration’s rationale as a pretext and found it engaged in “egregious” violations of federal regulatory law.

The Trump administration petitioned the Supreme Court to take up the case in an expedited fashion so that the Census Bureau can meet a June 30 deadline to prepare printed questionnaires.

Two other federal judges — in San Francisco and Greenbelt, Md.,— blocked the inclusion of the question in the months after Furman’s ruling. In both cases, they said it ran afoul of the enumeration clause of the Constitution.

Adding the question may also be complicated by recently discovered evidence suggesting that the Trump administration’s initial move to ask about citizenship was part of a deliberate attempt to aid Republicans by decreasing the political power of Latinos and boosting the influence of non-Hispanic white voters. Civil rights groups contend that documents belonging to a deceased GOP redistricting expert, Thomas Hofeller, show that language he wrote about the need to add the citizenship query appeared in a draft proposal circulated by administration officials.

On Tuesday, the U.S. Court of Appeals for the 4th Circuit remanded suits brought by civil rights groups to the Maryland-based judge, who signaled earlier in the week that he was likely to issue a new injunction blocking the citizenship question as an act of intentional, unconstitutional discrimination.

The new evidence and legal action triggered a flurry of last-minute letters to the Supreme Court, including a plea from the Trump administration to effectively head off any injunction based on the Hofeller records. Civil rights groups and some legal experts called the administration's request improper because the new evidence and the Maryland cases are not officially part of the appeals the justices are considering.

It’s unclear whether lower courts would regard a renewed attempt by Commerce to add the question as legally distinct from the earlier effort or potentially tainted by the alleged involvement of racial considerations earlier on.

Following his 2016 presidential victory, Trump claimed without evidence that millions of people voted illegally, tipping the popular vote in favor of his opponent, Hillary Clinton.

