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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