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Trump Has Lost His Attempt To Ask About Citizenship In The 2020 Census

The Census Bureau committed a “veritable smorgasbord of classic, clear-cut ... violations," the judge wrote.

Posted on January 15, 2019, at 11:57 a.m. ET

Leah Millis / Reuters

A federal judge in Manhattan on Tuesday blocked the Trump administration from asking people whether they are a citizen in the 2020 census, ruling that an effort to include the question “was unlawful for a multitude of independent reasons and must be set aside.”

State and local governments, along with a raft of advocacy groups, sued over the question, alleging it would deter participation in the once-a-decade survey, thereby undermining the census’s purpose.

US District Court Judge Jesse Furman found Commerce Secretary Wilbur Ross ran afoul of the Administrative Procedure Act with “a veritable smorgasbord of classic, clear-cut ... violations.”

“Most blatantly, Secretary Ross ignored, and violated, a statute that requires him, in circumstances like those here, to collect data through the acquisition and use of ‘administrative records’ instead of through ‘direct inquiries’ on a survey such as the census,” Furman wrote in his decision for the US District Court for the Southern District of New York.

“The Court’s Opinion is, to put it mildly, long,” Furman explained. “But that is for good reasons.”

Thick enough to be bound in hardback, the 277-page ruling applies to two cases challenging the citizenship question. The first case, New York v. United States Department of Commerce, was brought by a coalition of governments, including 18 states, cities, and a group of mayors. A second case, New York Immigration Coalition v. United States Department of Commerce, was filed by advocacy groups.

Both alleged the Commerce Department violated due process rights under the Fifth Amendment, but the judge ruled against that constitutional claim, saying the plaintiffs “failed to prove, by a preponderance of the evidence, that a discriminatory purpose motivated” the bureau.

But Furman agreed with them that officials violated APA, citing a multitude of ways Ross fell short of requirements for policy changes.

“He failed to consider several important aspects of the problem; alternately ignored, cherry-picked, or badly misconstrued the evidence in the record before him; acted irrationally both in light of that evidence and his own stated decisional criteria; and failed to justify significant departures from past policies and practices — a veritable smorgasbord of classic, clear-cut APA violations,” the decision says.

Until 1960, the census included a citizenship question. With Trump in office, the Justice Department under former attorney general Jeff Sessions requested it be reinstated. In 2018, Secretary Ross formally proposed adding it to the decennial survey.

The Justice Department lamented the judge’s order, saying it infringes on the administration's rights to make policies in its own vision.

“Secretary Ross, the only person with legal authority over the census, reasonably decided to reinstate a citizenship question on the 2020 census in response to the Department of Justice’s request for better citizenship data, to protect voters against racial discrimination,” Kelly Laco, a spokesperson for the department, said in a statement. “Not only has the government asked a citizenship question in the census for most of the last 200 years, 41 million households have already answered it on the American Community Survey since 2005. Our government is legally entitled to include a citizenship question on the census and people in the United States have a legal obligation to answer. Reinstating the citizenship question ultimately protects the right to vote and helps ensure free and fair elections for all Americans.”

The Justice Department did not say if it would try to appeal the decision, but a challenge could be difficult.

The case had reached a bench trial, which entailed Furman delving into the facts of the case — not just his reading of the law.

Those facts may strengthen the opinion on a possible appeal; the facts found by Furman will be considered intrinsic to the case unless the Justice Department can prove the judge abused his discretion in reaching those findings.

Among them, Furman found the decision to ask the question in 2020 was made “over the strenuous objections of the Census Bureau itself, which warned that adding a citizenship question would harm the quality of census data and increase costs significantly and that it would do so for no good reason because there was an alternative way to satisfy DOJ’s purported needs that would not cause those harms.”

Furman added that while agencies can shift policy, they must meet standards set by Congress.

“And although some may deride its requirements as ‘red tape,’” he wrote, “the APA exists to protect core constitutional and democratic values: It ensures that agencies exercise only the authority that Congress has given them, that they exercise that authority reasonably, and that they follow applicable procedures."

“That is not to say — and the APA does not say — that an agency cannot adopt new policies or otherwise change course," he added. "But the APA does require that before an agency does so, it must consider all important aspects of a problem; study the relevant evidence and arrive at a decision rationally supported by that evidence; comply with all applicable procedures and substantive laws; and articulate the facts and reasons — the real reasons — for that decision.

“The Administrative Record in these cases makes plain that Secretary Ross’s decision fell short on all these fronts,” Furman added. “In arriving at his decision as he did, Secretary Ross violated the law.”

As such, he concluded, "the Court vacates Secretary Ross’s decision to add a citizenship question to the 2020 census questionnaire" and blocks the administration from implementing "Secretary Ross’s March, 26, 2018 decision or from adding a question to the 2020 census questionnaire without curing the legal defects identified in this Opinion."

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