U.S. Commerce Secretary Wilbur Ross testifies on Capitol Hill, June 20, 2018. (Kevin Lamarque/Reuters)

This is another case in which Trump administration behavior is provoking plaintiffs to ask the judiciary to police the blurry boundaries of executive discretion.

Washington — The oral arguments the Supreme Court will hear on Tuesday will be more decorous than the gusts of judicial testiness that blew the case up to the nation’s highest tribunal. The case, which raises arcane questions of administrative law but could have widely radiating political and policy consequences, comes from the Enlightenment mentality of the nation’s Founders, and involves this question: Does it matter that a conspicuously unenlightened member of the president’s cabinet lied in sworn testimony about why he made a decision that he arguably has the statutory power to make?


Because America’s 18th-century Founders were rational, empirical, inquisitive pursuers of evidence-based improvement, they placed in the Constitution’s second section after the preamble a requirement for a census. And the 14th Amendment stipulates the required actual enumeration, every ten years, of “the whole number” of persons residing in the country. From 1820 (when Congress wanted “foreigners not naturalized” to be counted) through 1950, the census almost always included a citizenship question, and in 2018, Commerce Secretary Wilbur Ross decided that the 2020 “short-form” questionnaire, the one that goes to every household, should include one. Ross has testified that he was “responding solely” to a Justice Department request for the question to provide data helpful to enforcement of the Voting Rights Act (VRA) of 1965.

A federal district judge called this Ross rationale “pretextual” because Ross was justifying a decision “already made for other reasons.” This was a polite but still stinging way of saying Ross lied, which he almost certainly did: Justice officials initially rejected Commerce’s request that it ask for a citizenship question, and said such data was unnecessary for VRA enforcement. The district judge said Commerce sought the Justice letter to “launder” the request for the citizenship question “through another agency,” this being just one of “a veritable smorgasbord” of rules violations by Ross and his aides.


Ross also testified that he was “not aware” of any discussions of the citizenship questions between Commerce and the White House. But after 18 states, 15 municipalities, and various immigration advocacy groups sued, he acknowledged meeting early in 2017 with then–presidential adviser Stephen Bannon, an anti-immigration zealot. The district judge also said Ross “materially mischaracterized” — translation: lied about — a conversation with a polling expert in order to obfuscate the expert’s objections to the citizenship question.

Because more information is preferable to less, the citizenship question might seem sensible. However, the question might result in less information because the Census Bureau’s own experts believe that the citizenship question would cause 6.5 million people — almost one in ten households includes one or more noncitizens — to not respond to the questionnaire for fear of law-enforcement consequences. The 6.5 million are approximately as many people as live in Indiana. Of the estimated 24 million noncitizens (about 7 percent of America’s population of almost 329 million), almost eleven million are here illegally.



The citizenship question is, the Trump administration insists, “a wholly unremarkable demographic question.” But why, then, was Ross so dishonest concerning its genesis? This is probably why: A substantial undercount would affect the formulas by which hundreds of billions of dollars of federal spending are dispersed, to the disadvantage of blue states and cities with large immigrant populations. Furthermore, because the 14th Amendment stipulates that seats in the House of Representatives shall be apportioned on the basis of “the whole number of persons in each state” regardless of citizenship, an undercount could cost some states, particularly blue states, congressional seats, and hence electoral votes.

The district-court judge was scalding about the “egregious” behavior of Ross, who “in a startling number of ways” either “ignored, cherry-picked, or badly misconstrued” evidence and “acted irrationally . . . in light of that evidence.” Yet the judge professed himself “unable to determine — based on the existing record, at least — what Secretary Ross’s real reasons for adding the citizenship question were.” Perhaps the judge was precluded from coming to a conclusion about Ross’s motives; the public is not.


This is another case in which Trump-administration behavior (following equally indefensible Obama-administration behavior) is provoking plaintiffs to ask the judiciary to police the blurry boundaries of executive discretion. The Supreme Court, however, is apt to decide that Ross’s wretched behavior does not alter the fact that Congress has granted to him sufficient discretion over the census to accommodate his decision to include the citizenship question. This, in spite of reasonable surmises about his motives that his behavior seemed designed to disguise.

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