WASHINGTON — The Trump administration defended its decision Tuesday to add a citizenship question to the 2020 census by arguing before the US Supreme Court that even if responses went down, it was worth it to get as much information as it could about who is and is not a citizen — and that, regardless, it wasn’t the government’s fault.
The legal fight over adding a citizenship question to the decennial population survey comes before the US Supreme Court less than a year before the count begins. At stake is the accuracy of information collected from millions of American households, which is used to decide everything from the size of congressional districts to how billions of dollars in federal funds are spent.
The justices’ questions on Tuesday morning highlighted the line between the court’s liberal and conservative wings — the former was more skeptical of the government — but there was no open disagreement among the justices from the bench that might have revealed major points of tension.
Commerce Secretary Wilbur Ross announced in March 2018 that he would add a citizenship question to the 2020 census. Lawsuits challenging the decision were filed in courts across the country, and the Trump administration largely lost at every stage. Although by law the Census Bureau can’t share data with law enforcement agencies, the challengers argued that wouldn’t ease the fears that noncitizens have about sharing their immigration status with the federal government, and those households would either provide false information or not return their surveys at all.
Judges repeatedly blocked the administration from adding the question, finding that Ross ignored a wealth of information showing it would hurt the accuracy of the census, and that Ross’s stated reason for including the question — that the Justice Department needed it to help with voting rights enforcement — was a pretext.
The justices are expected to rule by the end of the term in June, resolving the issue in time for the Census Bureau to prepare the questionnaire to go out next year.
Solicitor General Noel Francisco began his arguments on Tuesday by stressing that for roughly 200 years, the US government had asked about citizenship in one way or another. Justice Sonia Sotomayor cut him off, noting that citizenship hadn’t been part of the main census count since 1950, which meant it wasn’t part of census history for the past 65 years.
The government’s argument broke down into two parts: First, Ross’s decision to add the question wasn’t something that a court could review. The government argued that Congress gave the Commerce secretary broad discretion to decide what went on the questionnaire. The administration also contends that the challengers couldn’t show that any harm they faced from a depressed count was the government’s fault — if people didn’t return questionnaires, or sent back incomplete or incorrect information, they were shirking their own legal obligation.
The second part of the government’s argument is that even if the courts could step in, Ross acted within his authority, and for good reason, to add the question back in.
Francisco argued that in including any demographic questions on the census — that is, asking anything beyond how many people live in a home — there would always be a trade-off between “information and accuracy.” He pointed to the fact that the Justice Department had told Ross that the citizenship question would help the DOJ enforce the Voting Rights Act, since it would provide more complete statistics on the number of noncitizens in the US than estimates based on a smaller pool of data from other sources.
Sotomayor and Francisco sparred over how to consider evidence in the record about alternatives for coming up with citizenship data besides putting it on the census survey. Sotomayor pointed to the Census Bureau’s own experts telling Ross that they came up with prediction models — ”which is what scientists can do,” she quipped — that showed Ross’s plan would yield less accurate data than pulling citizenship information from other government records.
Francisco replied that the bureau’s experts couldn’t conclude Ross’s plan would be worse to a level of quantitative certainty. Justice Elena Kagan said that, regardless, there was “a bottom-line conclusion” from within the bureau, and she questioned where the record showed Ross clearly explaining why he decided to go against that. Many of the Justice Department’s arguments, once groups started suing over the question, didn’t appear in Ross’s own explanations, Kagan said.
The court’s more conservative justices asked few questions of Francisco. Justice Brett Kavanaugh offered Francisco an opportunity to explain why adding a citizenship question would help the Justice Department enforce the Voting Rights Act. Francisco said all of the demographic information DOJ used came from the main census survey except for citizenship data, and the department would prefer consistency.
Sotomayor cited evidence that showed that when Ross originally asked the Justice Department about adding the question, the department declined to ask for it, and referred Ross to the Department of Homeland Security. When DHS also declined to ask for the question, Ross spoke with then–attorney general Jeff Sessions, and DOJ officials told Ross they’d help.
Sotomayor said that Ross’s proposal was a “solution in search of a problem.” Kagan agreed, telling Francisco that “you can’t read this record without sensing that this need is a contrived one.”
Francisco didn’t directly address the agency back-and-forth, but said it was “quite common” for cabinet secretaries to come in with ideas and discuss them with colleagues — there was no evidence Ross would have added the question if the Justice Department hadn’t expressed a need, he said. He also argued that under the challengers’ position, the Census Bureau couldn’t ask about citizenship at all, even in other official surveys where citizenship questions hadn’t been challenged, and that other groups could come in and argue that other demographic questions, such as about gender, shouldn’t be on the questionnaire either.
The Challengers
New York Attorney General Barbara Underwood handled the main argument for the challengers. Justice Ruth Bader Ginsburg asked if there was any evidence that having citizenship data from the census survey would have helped the Justice Department in past voting rights cases. Underwood replied there wasn’t any in the record. Kavanaugh followed up by asking what should happen if it was unclear whether adding a citizenship question would help DOJ. Underwood replied that if there was uncertainty, it wasn’t worth the cost of a decline in the total count.
Kavanaugh then took a global view, asking Underwood about a recommendation by the United Nations that countries ask about citizenship. Underwood said the UN also cautioned countries to test questions to make sure they didn’t interfere with the population count, and she argued other countries might not have the same problems as the United States with undercounting.
The court’s conservative justices asked a series of questions about how the challengers were sure the citizenship question specifically would depress the count. Roberts noted there were other demographic questions on the survey, and Justice Samuel Alito said there were differences between citizens and noncitizens — such as socioeconomic status and language ability — that might explain why response rates would go down.
Underwood said that reviews of census counts in 2000 and 2010 — when the Census Bureau also sent out separate, longer surveys that included a citizenship question in addition to the main questionnaire — showed a marked decline in response among Latinos and noncitizens when faced with a citizenship question. Underwood said the record didn’t address whether there might be other factors for a dip in responses.
The court heard from two other lawyers representing groups opposed to the question. ACLU attorney Dale Ho stressed that inaccurate responses to a citizenship question would “contaminate” the Census Bureau’s ability to come up with estimates based on the samples of data available.
Douglas Letter, general counsel for the House of Representatives, argued that the accuracy of the count — more than any other information that the Census Bureau collected in the decennial census — was of “utmost importance” to the House. Anything that undermined that count, which is required by the US Constitution, “is immediately a problem,” he argued.
Ginsburg asked why the courts should step in when Congress had the power to say whether the census should ask about citizenship. Letter replied with a jab at Francisco and the government, saying Congress had tried to hold hearings to gather more information about how the citizenship question came about, but Ross and a key Justice Department official, John Gore, had declined to provide certain information, citing the pending litigation.
Roberts asked what other information Congress needed when it had all of the expert conclusions and evidence. Letter replied that lawmakers wanted to know why Ross decided to go against his own bureau’s recommendation.