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

Supreme Court Rules On Census And Gerrymandering

Two new rulings from the Supreme Court have addressed questions regarding the citizenship question on the 2020 census and partisan gerrymandering of congressional districts. In a defeat for the Trump Administration, the Court referred the citizenship question back to the lower court. The Court also distanced the judicial branch from questions of partisan rigging of congressional districts.

On the census question, Chief Justice John Roberts joined the Court’s four liberal justices in a decision that held that the Commerce Department’s justification for adding the citizenship question, that the government wanted to use the data to better enforce voting rights laws, was a pretext after evidence was found in the estate of deceased Republican strategist that suggested that the use of a citizenship question could provide whites and Republicans with an electoral advantage after the next redistricting.

A federal judge in New York ruled that Commerce Secretary Wilbur Ross had committed “smorgasbord of classic, clear-cut violations” of federal laws governing administrative agencies in including the question. The Court returned the case to the lower courts for additional consideration but ruled that Wilbur Ross could not be deposed.

The Court left the door open to further appeal by the Trump Administration noting that it was reasonable to use a citizenship question on the census rather than administrative records as the Census Bureau recommended even if the tactic resulted in a lower response rate from Hispanic households. The problem found by the Court was that Ross’s rationale was not supported by evidence.

“The evidence showed,” Roberts wrote, that Ross “was determined to reinstate a citizenship question from the time he entered office; instructed his staff to make it happen; waited while Commerce officials explored whether another agency would request census-based citizenship data; subsequently contacted the Attorney General himself to ask if DOJ would make the request; and adopted the Voting Rights Act rationale late in the process.”

When “the evidence tells a story that does not match the explanation the Secretary gave for his decision,” Roberts continued, judicial review calls for “something better than the explanation offered for the action taken in this case.”

On the question of gerrymandering, drawing congressional districts for maximum partisan gain, the Court ruled in a 5-4 decision that, while the process is distasteful, gerrymandering is a problem for politicians rather than the courts.

In a decision also written by Chief Justice Roberts, the Court held that there was no constitutional requirement for proportional representation in congressional districts. Congressional districts do not have to reflect the proportion of a party’s statewide vote.

“Nothing in the Constitution provides standards to decide what is fair,” wrote Roberts.

Roberts suggested that there were other alternatives for addressing the gerrymandering problem. For example, either Congress or the states could mandate that redistricting be done by independent commissions rather than by partisan legislators.

Roberts was joined in the majority on this case by Justices Clarence Thomas, Samuel Alito, Neal Gorsuch, and Brett Kavanaugh.

Originally published on The Resurgent