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In for the count

A furore over a proposed question in the 2020 US census could escalate into a constitutional crisis

Lesley Russell 10 July 2019 1800 words

Down to the wire: news agency interns sprint across the plaza at the Supreme Court on 27 June with copies of the justices’ final decisions of the term, including their decision on the 2020 census question. J. Scott Applewhite/AP Photo

Since this article was published, the Trump administration has withdrawn its attempt to include the citizenship question in the 2020 census

“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.” So Donald Trump tweeted a couple of weeks ago. On the surface, it seems quite reasonable for the census to do what the president wants and enquire whether a person is a citizen of the United States. But you won’t be surprised to hear that the real reason he wants the question posed is anything but straightforward.

Despite the District Court of New York’s decision to stop the question appearing in the 2020 census — a decision since upheld by the Supreme Court — and despite assertions by commerce secretary Wilbur Ross and the justice department that the courts would be heeded, Trump says he is considering an executive order to force the question onto the census.

Some legal experts think this end run around the Supreme Court and Congress will bring chief justice John Roberts and House Leader Nancy Pelosi into the fray. It would certainly put the White House squarely at loggerheads with those two bodies, and could provoke a constitutional crisis.

How did America reach this contretemps? Under the Constitution, an “actual enumeration” of everyone living in the United States must take place every decade. Seats in the House of Representatives are then apportioned according to “the whole number of persons in each state.” The census also determines each state’s quota of electoral college votes, as well as helping shape electoral maps and ensuring the equitable allocation of some US$900 billion in federal funds for Medicaid, development grants, public schools, law enforcement and disaster relief.

Despite the Census Act’s requirement that Congress be notified of planned questions three years in advance, citizenship was not on the list Ross sent to Congress in March 2017. But we now know that the topic was being discussed within the White House, though perhaps mainly among since-departed right-wing functionaries like Steve Bannon and Stephen Miller.

The public debate was kicked off by a leaked January 2017 draft executive order calling for the Census Bureau to add the question as part of a range of new immigration enforcement measures. Secretary Ross approved the question in March last year, overriding career officials at the bureau who were concerned that the question would reduce the response rate among non-citizens.

In congressional testimony later that month, Ross denied having discussed the matter with the White House and said he was responding solely to a request from the justice department; but it later emerged that he had discussed the matter with Bannon and attorney-general Jeff Sessions in the spring of 2017. Leaked emails show that the idea had been pushed by a justice department political appointee who, in private practice, had defended partisan electoral boundaries introduced by Republican legislators.

Adding new questions to the census isn’t unusual, and nor is asking about citizenship — though only in census-related surveys targeted at a sample of households rather than in the questionnaire received by every household. Those latter forms haven’t included questions about citizenship or country of birth since 1950.

As early as 2015, four former census directors were warning that a citizenship question to all households would undermine the accuracy of the count. They argued that significant numbers of people — especially those from immigrant and minority families — would be fearful of responding. That fear was heightened when Trump threatened that immigration enforcement agents would begin rounding up and removing millions of people without approved documentation.

Because of their potential impact on response rates, all questions proposed for the census must be adequately tested. The citizenship question hasn’t been through that process, but testing of the existing 2020 census questionnaire had already revealed a heightened reluctance to answer the survey and increased concern about confidentiality and privacy. Although the federal government is barred from using individual census data for law enforcement, most people don’t know or perhaps don’t believe that.

With the Census Bureau required to make follow-up efforts to collect data from non-responding households, a low response rate will be costly. For every percentage point of non-responsiveness, the bureau is expected to spend around US$55 million following up.

For some states in particular, inaccurate census data will result in less representation in Congress and less federal funding. By one estimate, 6.5 million people will be missing nationally, with Arizona, California, Florida, Illinois, New York and Texas potentially losing seats in Congress. According to a Pew Research Center study, a majority of the nation’s undocumented immigrants live in just twenty metropolitan areas, with most of them resident in New York, Los Angeles, Houston, Dallas, Chicago, Miami and Washington, DC.

Along with lawmakers in states like California and New York, urban leaders, who are mostly Democrats, are alarmed by the proposed question. Their fears appear well founded. The justice department’s official view is that it needs to know how many people are eligible to vote so it can better enforce the Voting Rights Act. But recent evidence — in the form of files found on the computer of a Republican strategist after his death — suggests that the citizenship question was drafted specifically to benefit Republicans. In 2015, the strategist, Thomas Hofeller, conducted a study that found a citizenship question would help Republicans in their efforts to shape electoral boundaries to their advantage during the periodic “redistricting” process. Hofeller contributed to a memorandum for the justice department arguing that the question was critical to enforcing “voting rights.”

Not surprisingly, more than twenty states and cities, along with civil liberty groups, filed lawsuits about this issue, culminating in the Supreme Court decision that shocked Trump and his administration. In what has been described as a “split the baby” decision, the Supreme Court upheld, 5–4, the decision of the New York District Court requiring the commerce department to give a true explanation for its decision to include the citizenship question in the census.

Chief justice John Roberts was the surprise swinging vote. He sided first with the conservatives on the court to uphold the right of the administration to add the question, finding that this was constitutionally and statutorily permissible. Then he switched sides and, along with the four liberals on the court, held that the commerce secretary had not given the true reasons for needing the question on the census. The opinion written by Roberts suggested that Ross was motivated by partisan politics and could face charges for his “pretexts” (a lawyerly term for lies) and for blatantly misleading the courts.

The justice and commerce departments appeared to accept the Supreme Court decision, announcing that the census materials would now be able to meet the 1 July deadline for printing. Trump, fuming, had other ideas. At 1.04am on American Independence Day he undercut his officials to tweet that “News Reports about the Department of Commerce dropping its quest to put the Citizenship Question on the Census is incorrect or, to state it differently, FAKE! We are absolutely moving forward, as we must, because of the importance of the answer to this question.”

What followed was a round of chaotic manoeuvring, as administration officials quickly reversed themselves and pledged to restore the question to census forms. Attorney-general William Barr now says the Supreme Court decision was wrong, and that there is “an opportunity potentially to cure the lack of clarity that was the problem” — presumably this means Ross’s lies — “and that we might as well take a look at doing that.”

By one count the Trump administration has changed its position on the citizenship story at least ten times in the past four months. But the real thinking behind the citizenship question became clearer in the argy-bargy following the Supreme Court’s decision. The acting director of the citizenship and immigration services said the questions would help “financially and legally with the burden of those who are not here legally,” and Trump said, “I think it’s important to find out if somebody is a citizen as opposed to an illegal.”

The justice department’s search for a “legally available path under the Supreme Court’s decision” appears to have hit a roadblock. Earlier this week the lawyers charged with this task were removed from the case with no explanation. Just as I write this, though, it is reported that a federal judge, acting at the request of the American Civil Liberties Union and other plaintiffs, has barred government lawyers from leaving until they meet a legal requirement to satisfactorily explain their departure and show that it would not impede the case they were working on going forward.

It seems likely the legal team’s departure is linked to the legality of Trump and Barr’s pushing ahead and aggravated by Trump’s threat of an executive order to bypass the courts’ decisions and get the citizenship question on the ballot. However much Trump might want to do this, a presidential order cannot override existing court rulings. And federal courts also have the power to set aside unconstitutional executive orders. Moreover, Congress cannot cede its constitutional responsibility for the census to the executive branch and the president.

It’s hard to imagine chief justice Roberts and House leader Nancy Pelosi allowing Trump to get away with this testing of the boundaries of executive power, and this is why some legal experts see a constitutional crisis looming.

The administration has other, less dramatic options, as Trump himself has acknowledged. “We could also add an addition on,” he has said, allowing time for a renewed effort to introduce the citizenship question by normal means. “So we could start the printing now and maybe do an addendum after we get a positive decision. So we’re working on a lot of things including an executive order.” Trump also says he has asked the administration’s lawyers if they can delay the census.

From a logistical point of view, though, any delay or add-on could be problematic. The census is mandated to take place on 1 April 2020 and changing the date would require an act of Congress. Printing and distributing a separate question would be prohibitively expensive.

Even if the troublesome question doesn’t make it into the census, the damage has probably already been done, with people’s confidence and willingness to accurately supply information compromised. Certainly, the job of the thousands of census workers in certain neighbourhoods has been made doubly difficult. Beyond the census itself, this has now become a civil rights issue.

Unless there is a reasonable resolution soon, this contentious issue will be a major factor in the 2020 election. Trump’s recent tweets give an indication of how he will use the census to play to his base. On Tuesday he tweeted about the “strained” Supreme Court ruling, saying it “shows how incredibly important our 2020 Election is.” •

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