Trump Officials Prepared For Supreme Court Fight Over Census Question

Enlarge this image toggle caption J. Scott Applewhite/AP J. Scott Applewhite/AP

Updated September 14

Commerce Secretary Wilbur Ross and his staff prepared to embark on a legal fight that would take them to the highest court in the U.S. long before announcing the controversial decision to add a citizenship question to the 2020 census.

"Since this issue will go to the Supreme Court we need to be diligent in preparing the administrative record," Commerce Department official Earl Comstock wrote to Ross in an Aug. 9, 2017, email about preparing a memo and briefing for the commerce secretary on a citizenship question.

Ross replied the next day: "we should be very careful,about everything,whether or not it is likely to end up in the SC."

This exchange between Ross, who oversees the Census Bureau, and Comstock, a key Commerce official on census-related matters, was revealed in a newly unredacted email chain the Trump administration released Tuesday as part of the lawsuits over the question.

The Commerce Department declined to comment, citing ongoing litigation.

The addition of the question — which asks, "Is this person a citizen of the United States?" — to the 2020 census was announced by Ross in March. It has sparked six legal challenges from more than two dozen states and cities, plus other groups, that want it removed from forms for the upcoming national head count. A citizenship question has not been among the census questions for all U.S. households since 1950.

Citing research by the Census Bureau, the plaintiffs argue that asking about U.S. citizenship status is likely to discourage noncitizens from taking part in the 2020 census and harm its accuracy. The government's population counts determine how political power — namely congressional seats and Electoral College votes — and an estimated $800 billion a year in federal funds are divided among the states.

Potential federal trials by judge for the lawsuits in California and one in Maryland are scheduled to start in January. Among the claims judges have allowed the plaintiffs to argue in those cases is that adding a citizenship question in the current political climate is unconstitutional because it may deter the federal government from counting every person living in U.S. — regardless of citizenship status — as the Constitution requires once a decade.

The "final" word on the citizenship question?

U.S. District Judge Jesse Furman, who is presiding over the two cases in New York that may go to trial as early as late October, has indicated that he expects the lawsuits to move on to higher courts.

"I am mindful that my word is not likely to be the final one here," he said during a court hearing in July.

Attorneys for the plaintiffs have been going back and forth with the Justice Department, which is representing the Commerce Department and the Census Bureau in the lawsuits, over the release of more internal documents and removal of redactions from already released emails and memos.

"Defendants can cite no legitimate government interest in shielding records that will shed light on a scheme to mislead the American public," wrote the plaintiffs' attorneys from the American Civil Liberties Union, the law firm Arnold & Porter and the New York state attorney general's office in a recent court filing.

The lawyers have also been questioning Trump administration officials to find evidence that by adding a question about citizenship status, Ross was allegedly misusing his authority over the census and discriminating against immigrant communities.

On Monday, the plaintiffs' attorneys asked Furman to order the Trump administration to make Ross available for deposition. Justice Department lawyers warned in a court filing Thursday that if the judge grants the request, they're prepared to ask the 2nd U.S. Circuit Court of Appeals to block it.

The administration says its push for the question is driven by the need for better data to enforce the Voting Rights Act's Section 2 provisions against racial discrimination. Since the civil rights law was enacted in 1965, the federal government has relied on estimates of voting-age citizens based on a sample survey by the Census Bureau that is now known as the American Community Survey, which about 1 in 38 households every year are required to complete.

The Voting Rights Act, however, did not appear to be top of mind for Ross and other Commerce officials in their initial push for the citizenship question, based on internal documents filed for the lawsuits.

"Long story short is that the counting of illegal immigrants (or of the larger group of non-citizens) has a solid and fairly long legal history," wrote David Langdon, a policy adviser who joined the Commerce Department during the Obama administration, in a May 2017 email to Comstock and Ellen Herbst, a former acting deputy commerce secretary and Obama appointee who left the department last year.

The email goes on to discuss the issue of excluding immigrants who are living in the U.S. illegally from census numbers used to redistribute congressional seats among the states. The document was filed with the courts on Thursday by the plaintiffs' attorneys. Justice Department lawyers previously refused to disclose the contents of the email, citing "pre-decisional analysis and opinions in anticipation of litigation."

Ross' pressure behind the question

In March, Ross testified in Congress that the Justice Department "initiated" the request for the question with a December 2017 letter to the Census Bureau. But he later contradicted that timeline by disclosing in a memo that months before the DOJ submitted that letter, he and his staff contacted the Justice Department about requesting a citizenship question.

Previously released emails show that Ross pressured his staff to find a way to get the question onto the census.

Just over two months after he took over the Commerce Department last year, Ross wrote in a May 2017 email to Comstock and Herbst, "I am mystified why nothing have been done in response to my months old request that we include the citizenship question. Why not?"

In an unredacted portion of the August 2017 email exchange with Comstock about a citizenship question, Ross wrote: "Where is the DoJ in their analysis ? If they still have not come to a conclusion please let me know your contact person and I will call the AG."

Justice Department attorneys are refusing to remove redactions from other parts of that email chain. In a court filing released on Tuesday, they note that the "release of personal views on call with Census on citizenship question could chill the frank exchange of ideas among [Commerce Department] employees and harm the agency's ability to reach sound decisions."