Wednesday, July 3, 2019

Trump Shelves Citizenship Census Question

After an unfriendly Supreme Court ruling last week, the Trump Administration has dropped its controversial attempt to add a citizenship question to the 2020 census. A spokesman for the Trump Administration said on Tuesday that they would not appeal the Supreme Court’s decision. President Trump had said as recently as Monday that he would consider delaying the census to appeal the ruling.

“We can confirm that the decision has been made to print the 2020 decennial census questionnaire without a citizenship question and that the printer has been instructed to begin the printing process,” Justice Department attorney Kate Bailey wrote in an email to groups opposing the census question.

In a statement, Commerce Secretary Wilbur Ross also confirmed, “The Census Bureau has started the process of printing the decennial questionnaires without the question,” also stating, “I respect the Supreme Court but strongly disagree with its ruling regarding my decision to reinstate a citizenship question on the 2020 Census.”

In fact, even though the immigration status of people living within US borders is clearly within the legitimate interests of the federal government, the Supreme Court ruling written by Chief Justice John Roberts seems to have been the correct decision. The question for conservatives and constitutionalists is how Roberts got from his observation that the “Enumeration Clause permits Congress, and by extension the Secretary, to inquire about citizenship on the census questionnaire” to his ultimate decision that the Trump Administration violated the law adding the question.

While many pundits are quick to point out that citizenship questions have been asked on the census before, few look to Roberts’ written decision for an answer to the seemingly contradictory statements in the decision. In his justification, the chief justice cited the Administrative Procedures Act, a 1946 law that requires courts to strike down government actions that are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”

“The Census Act confers broad authority on the Secretary, but it does not leave his discretion unbounded,” Roberts wrote.

“The Secretary’s decision was supported by the evidence before Him,” Roberts continued. “He examined the Bureau’s analysis of various ways to collect improved citizenship data and explained why he thought the best course was to both reinstate a citizenship question and use citizen-ship data from administrative records to fill in the gaps. He then weighed the value of obtaining more complete and accurate citizenship data against the uncertain risk that reinstating a citizenship question would result in a materially lower response rate, and explained why he thought the benefits of his approach outweighed the risk. That decision was reasonable and reasonably explained, particularly in light of the long history of the citizenship question on the census.”

However, Roberts continued, “In order to permit meaningful judicial review, an agency must ‘disclose the basis’ of its action.” This is where Secretary Ross and the Trump Administration ran into problems.

“Viewing the evidence as a whole, this Court shares the District Court’s conviction that the decision to reinstate a citizenship question cannot adequately be explained in terms of DOJ’s request for improved citizenship data to better enforce the VRA [Voting Rights Act],” Roberts stated.

Roberts goes on to describe how enforcement of the VRA seemed secondary to other considerations, despite the government’s claims to the contrary. Ross tried to involve the Justice Department in the census question, but “DOJ’s actions suggest that it was more interested in helping the Commerce Department than in securing the data.”

“Altogether, the evidence tells a story that does not match the Secretary’s explanation for his decision,” Roberts said. “Unlike a typical case in which an agency may have both stated and unstated reasons for a decision, here the VRA enforcement rationale—the sole stated reason—seems to have been contrived.”

In other words, the addition of the citizenship question was not illegal except for the fact that Secretary Ross lied about the reason for wanting to ask the question. Since the Administrative Procedures Act charges the courts to “ensure that agencies offer genuine justifications for important decisions, reasons that can be scrutinized by courts and the interested public,” the Supreme Court had a duty to strike down the question when it became apparent that Ross’s justification for asking it was dishonest.

The citizenship question was not struck down because an activist Court wanted to prevent data from being collected about the number of illegal immigrants in the United States (although it is certainly possible that this was the motive of the liberal wing of the Court). The government lost its case because of the reflexive dishonesty of members of the Trump Administration. Given the latitude with which the government is given in conducting the census and the history of census questions about citizenship, there seems to have been no reason for Ross to have lied about the rationale for the question, yet lie he did.

For conservatives and those who wish to abide by the rule of law, the position should be that the government must adhere to the law, even when the law restricts policies that we would favor. If the Court had ignored the Administrative Procedures Act’s requirements for an honest bureaucracy, that would have been an example of judicial activism. To be intellectually and morally consistent, we have to abide by laws that we don’t like as well as those that we do (such as those against illegal immigration).

The ruling also underscores the importance of voting for honest and competent candidates, not just those who say what we want to hear. The addition of the citizenship question could have been accomplished by the administrations of any number of Republicans. Immigration concerns are not unique to the administration of Donald Trump. However, it seems likely that the culture of dishonesty that permeates the Trump Administration from the top down is what ultimately killed the attempt to learn more about noncitizens living within the United States.  

Character matters.

Originally published on The Resurgent

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