Justices seem ready to OK asking citizenship on census
April 23, 2019 By MARK SHERMAN
WASHINGTON (AP) — Despite evidence that millions of Hispanics and immigrants could go uncounted, the Supreme Court’s conservative majority seemed ready Tuesday to uphold the Trump administration’s plan to inquire about U.S. citizenship on the 2020 census in a case that could affect American elections for the next decade.
There appeared to be a clear divide between the court’s liberal and conservative justices in arguments in a case that could affect how many seats states have in the House of Representatives and their share of federal dollars over the next 10 years. States with a large number of immigrants tend to vote Democratic.
Three lower courts have so far blocked the plan to ask every U.S. resident about citizenship in the census, finding that the question would discourage many immigrants from being counted . Two of the three judges also ruled that asking if people are citizens would violate the provision of the Constitution that calls for a count of the population, regardless of citizenship status, every 10 years. The last time the question was included on the census form sent to every American household was 1950.
Three conservative justices, Samuel Alito, Neil Gorsuch and Clarence Thomas, had expressed skepticism about the challenge to the question in earlier stages of the case, but Chief Justice John Roberts and Brett Kavanaugh had been silent, possibly suggesting a willingness to disrupt the administration’s plan.
However, over 80 minutes in a packed courtroom, neither Roberts nor Kavanaugh appeared to share the concern of the lower court judges who ruled against the administration.
Kavanaugh, the court’s newest member and an appointee of President Donald Trump, suggested Congress could change the law if it so concerned that the accuracy of the once-a-decade population count will suffer. “Why doesn’t Congress prohibit the asking of the citizenship question?” Kavanaugh asked near the end of the morning session.
Kavanaugh and the other conservatives were mostly silent when Solicitor General Noel Francisco, the administration’s top Supreme Court lawyer, defended Commerce Secretary Wilbur Ross’ decision to add the citizenship question. Ross has said the Justice Department wanted the citizenship data, the detailed information it would produce on where eligible voters live, to improve enforcement of the Voting Rights Act.
Lower courts found that Ross’ explanation was a pretext for adding the question, noting that he had consulted early in his tenure with Stephen Bannon, Trump’s former top political adviser and immigration hardliner Kris Kobach, the former Kansas secretary of state.
The liberal justices peppered Francisco with questions about the administration plan, but they would lack the votes to stop it without support from at least one conservative justice.
“This is a solution in search of a problem,” Justice Sonia Sotomayor, the court’s lone Hispanic member, said of Ross’ decision.
Justice Elena Kagan chimed in that “you can’t read this record without sensing that this need was a contrived one.”
Roberts appeared to have a different view of the information the citizenship question would produce.
“You think it wouldn’t help voting rights enforcement?” Roberts asked New York Solicitor General Barbara Underwood, who was representing states and cities that sued over Ross’ decision.
Underwood and American Civil Liberties Union lawyer Dale Ho said the evidence showed the data would be less accurate. Including a citizenship question would “harm the secretary’s stated purpose of Voting Rights Act enforcement,” Ho said.
Census Bureau experts have concluded that the census would produce a more accurate picture of the U.S. population without a citizenship question because people might be reluctant to say if they or others in their households are not citizens. Federal law requires people to complete the census accurately and fully.
The Supreme Court is hearing the case on a tight timeframe, even though no federal appeals court has yet to weigh in. A decision is expected by late June, in time to print census forms for the April 2020 population count.
The administration argues that the commerce secretary has wide discretion in designing the census questionnaire and that courts should not be second-guessing his action. States, cities and rights groups that sued over the issue don’t even have the right to go into federal court, the administration says. It also says the citizenship question is plainly constitutional because it has been asked on many past censuses and continues to be used on smaller, annual population surveys.
Gorsuch, also a Trump appointee, also noted that many other countries include citizenship questions on their censuses.
Douglas Letter, a lawyer representing the House of Representatives, said the census is critically important to the House, which apportions its seats among the states based on the results. “Anything that undermines the accuracy of the actual enumeration is immediately a problem,” Letter said, quoting from the provision of the Constitution that mandates a decennial census.
Letter also thanked the court on behalf of Speaker Nancy Pelosi for allowing the House to participate in the arguments.
“Tell her she’s welcome,” Roberts replied.
Associated Press writers Jessica Gresko and Darlene Superville contributed to this report.
Follow Mark Sherman on Twitter: https://www.twitter.com/shermancourt
Liberals Tell Supreme Court How Illegal Immigration Increases Their Power
Liberals in the U.S. House of Representatives and various state and local jurisdictions are asking the Supreme Court to join them in making a remarkable prediction: Next year, they argue, unless the court acts now to restrain the Department of Commerce, vast numbers of illegal aliens will violate a U.S. law that has profound constitutional consequences.
This widespread law breaking, they predict, will impact federal elections for at least 10 years.
And, these liberals contend, the bad guys in this situation will not be the illegal aliens violating the law but the federal agency trying to enforce it.
We are talking about the 2020 census.
Nancy Pelosi’s House of Representatives summarized the basic constitutional provision at stake in a brief submitted to the court in the case of the Department of Commerce v. New York. The court heard oral arguments on Tuesday.
“The Constitution’s Enumeration Clause, as modified by the Fourteenth Amendment,” the House said, “confers on Congress the responsibility to conduct every ten years an ‘actual Enumeration’ of the ‘whole number of persons in each State.'”
Based on next year’s enumeration, the current 435 House seats will be re-apportioned among the states, with each getting a minimum of one.
The “whole number of persons” cited in the Constitution does not distinguish between citizens and noncitizens or legal and illegal immigrants.
The census is meant to count literally all persons living in the United States.
To carry out this function, as Solicitor General Noel Francisco told the court in his own brief, Congress has enacted laws. One broadly delegates to the secretary of commerce the power to conduct the census “in such form and content as he may determine.”
Others place legal responsibilities on U.S. residents.
“Individuals who receive the census questionnaire are required by law to answer fully and truthfully all of the questions, and the government must keep individual answers confidential,” Francisco explained, summarizing 13 U.S.C. 9(a) and 221.
Historically, the census has routinely asked demographic questions and for many decades specifically asked about citizenship. California Attorney General Xavier Becerra admitted in his own brief that at some point in the past it was constitutional for the census to ask about citizenship — and could be again someday.
“To be clear,” Becerra said, “California does not contend ‘that each and every’ past census with a citizenship question was ‘conducted in violation of the Enumeration Clause,’ … or that such a question could never properly be added to any census in the future.”
So, why did California, the U.S. House of Representatives and other governmental jurisdictions around the country decide to argue the issue in court when Commerce Secretary Wilbur Ross decided to include a citizenship question in the 2020 census?
The first premise in their argument is that the citizenship question will cause some people to disobey the law that requires them to answer census questions.
The House put it to the Supreme Court this way: “No logical leap is required here: given the potential immigration consequences of being identified by the government as lacking legal immigration status, common sense explains the reluctance of noncitizens to self-identify on a government form.”
The second premise is that if people “lacking legal immigration status” do not complete the census form, certain states and jurisdictions will lose congressional seats and federal funding.
The California state legislature put this candidly.
“California is expected to lose at least one seat in the House of Representatives and possibly more,” it told the court.
“Depending on the experts’ estimated undercount attributable to the additional question,” it said, “that number could be as high as a loss of three seats.”
“Because many federal programs are based on population, California and its local jurisdictions will lose significant federal funding,” it said.
Harris County, Texas, was blunter.
“Given its raw population growth since 2010 of more than half a million people, Harris County is on track to gain an additional congressional seat,” it told the court.
But: “Under any scenario, in the re-apportionment following the 2020 Census Texas will most likely lose a congressional seat in Congress it otherwise deserves under the Enumeration Clause if the citizenship question is added. Indeed, Harris County alone has enough undocumented people to populate an entire congressional district.”
Put bluntly: Harris County told the Supreme Court it stands to gain power in the U.S. Congress because of the large number of illegal aliens living within its borders.
The administration argued to the court that those who brought the case against the citizenship question do not even have standing to do so.
“[T]heir asserted injuries are not fairly traceable to the Secretary’s decision to reinstate the citizenship question,” Francisco told the court. “None of the respondents’ alleged injuries will materialize if individuals completely and truthfully answer the census questionnaire, as required by federal law. The alleged injuries thus depend not just on third-party action, but on third-party action that is unlawful.”
Whether or not the court allows Commerce to ask the citizenship question, this case illuminates a fundamental point about illegal immigration.
Those pushing this suit believe their political interests are advanced by making sure all illegal aliens are counted. By the same logic, their political interests would also be advanced by increasing the number of illegal aliens in their jurisdictions.
If all of the illegal aliens in the United States were to suddenly obey the law and go home, California would lose congressional seats.
Harris County would lose one, too.
Does that help explain why some politicians in Washington, D.C., do not want to secure the border or enforce the immigration law?
Terence P. Jeffrey is the editor in chief of CNSNews.com.