John S. Baker Jr. is Professor Emeritus of Law at the Louisiana State University Law Center.

It will be interesting to see how much of the upcoming Supreme Court argument in Department of Commerce v. New York will be devoted to President Donald Trump’s tweets and other statements not vetted by his lawyers.

The Supreme Court agreed to expedited review of a district-court judgment barring Secretary of Commerce Wilbur Ross from including a citizenship question on the 2020 census. The court did so for very good reason. A single district judge cannot be allowed to control the constitutional mandate for a decennial census.

Without immediate action by the high court, a plaintiff-picked district judge would have usurped authority granted by Congress to the Secretary of Commerce. Printing of the 2020 census must take place by the end of June in order for distribution of the census forms to occur on time.

Six cases filed in three states challenged Ross’ decision. The plaintiffs in the two combined New York cases number 18 states, the District of Columbia, and various cities and counties, as well as a coalition of 175 nonprofit groups.

In the New York City litigation, U.S. District Judge Jesse Furman opined during a July 3 hearing that he was suspicious the Trump administration was acting in “bad faith.”

What bad faith? Daring to act contrary to the opinions of career bureaucrats? If the president’s political appointees cannot override unelected civil servants in order to implement the policies of an elected president, then we no longer have the protections for self-government specified in Article 2 of the Constitution.

The dispute goes to the heart of citizenship. A headline on the American Civil Liberties Union website says it all: “The Census Citizenship Question Illegally Discriminates Against Immigrants.” This is naked newspeak. It misuses the word “immigrant.”

“Immigrants” are persons granted the legal right to reside permanently in the U.S. Federal law labels them “permanent legal residents.” They have a legal pathway to citizenship.

To “discriminate” is “to recognize a distinction.” Federal law does indeed distinguish, i.e., “discriminate,” between “immigrants” and “aliens.” Such “discrimination” is in no way illegal or unconstitutional.

This distinction/discrimination is clearly apparent to anyone — American and foreign — who enters a U.S. airport from another country. The U.S. Customs and Border Protection process provides one line for U.S. nationals (citizens and permanent legal residents) and a separate line for all foreigners because they are “aliens.”

The many foreign tourists and foreign students — all aliens — who enter the U.S. legally suffer no invidious discrimination, even though they are subject to different legal treatment. The cry of discrimination depends on lumping all foreigners/aliens together rather than differentiating between aliens who entered the United States legally and those who did not. The unstated premise of the outrage and rhetoric is that citizenship does not matter.

The census citizenship question does distinguish/discriminate between citizens and aliens. The citizenship question, asked on many past decennial censuses, is the very same question that for some time has been asked on another form that goes only to a small percentage of the population, known as the American Community Survey.

Even Furman recognized — as he must — that Congress has given the Secretary of Commerce the authority to include this question on the census. Nevertheless, Furman gave those objecting to the question unjustified latitude in searching for possible grounds to claim that Ross acted with an improper purpose.

In an earlier ruling, the Supreme Court derailed the judge’s order allowing the plaintiffs to take Ross’ deposition. Furman gave credence to the plaintiffs’ claim that Trump administration officials were intentionally discriminating against immigrant communities of color. He pointed to Trump’s comments in January of 2018 about “people from sh*thole countries.”

As Furman and the U.S. Court of Appeals for the 2nd Circuit admitted, it was most unusual to allow the plaintiffs to go beyond the administrative record. Indeed, when one dispassionately looks at the administrative record, it becomes apparent that claiming invidious discrimination was the only possibility the plaintiffs had of prevailing below. The secretary’s memo more than explained his reasons for reinstituting a question that had been on past censuses.

Ironically, California — one of the plaintiffs — itself asks about citizenship. California’s New Motor Voter Act, allowing eligible residents to get a driver’s license, requires the driver’s-license applicant to attest that he or she is qualified to vote, in other words, that he or she is a citizen. The statute requires “[a] notation that the applicant has attested that he or she meets all voter eligibility requirements, including United States citizenship” before the person is automatically registered to vote.

So why the uproar about the 2020 census asking the citizenship question? As noted above, the Census Bureau already asks the citizenship question on what is called the American Community Survey. The ACS, however, only goes to roughly one in every 38 households. Asking the citizenship question from the ACS on the 2020 census, the count actually required by the Constitution, ought not to be controversial.

Ross, however, must have anticipated controversy over the citizenship question. The media firestorm prior to and since the announcement confirms his prescience. Fortunately, Ross’ memorandum announcing the question explains the process, rationale, and indeed the necessity for adding the citizenship question.

In addition, the Department of Commerce has produced the documents the secretary relied upon in making his decision. Those documents further illustrate his extensive review and careful consideration of the question.

Ross’ memorandum shows that the ACS citizenship estimates are very flawed. In the ACS responses, approximately 30 percent of those claiming to be citizens are in fact not citizens. Cross-referencing the ACS responses with other administrative records demonstrates the high level of false claims of citizenship. That means that the ACS 2012 estimate of 11 million illegal aliens is grossly inaccurate. The actual number of illegal aliens is millions more.

If the attorneys general of California and New York truly cared about a complete and accurate census population count, they would be encouraging their residents to be counted. But instead they are spreading misinformation and encouraging nonparticipation in the census.

Census information is protected by law. Answers to a form may not be used for law enforcement or any other purpose that would reveal the responders’ identity or how they answered a question. Census employees swear an oath to keep those data confidential for life, and impermissible uses of data may be punishable by significant fines and up to five years in prison.

Resistance by noncitizens to filling out their census forms has occurred in the past. What is new are the actions of state officials that effectively encourage noncitizens, their families and friends to resist the census. Resisting the Trump administration on the citizenship question actually jeopardizes protection of minority rights by blocking collection of more accurate data that would ensure better enforcement of the Voting Rights Act.

States need citizenship data for redistricting. Litigation over redistricting is currently before the Supreme Court. Whatever the court decides in these cases, follow-on litigation over redistricting is a certainty. States must have accurate data for defending against claims that they have diluted the right to vote. Section 2 of the Voting Rights Act prohibits “vote dilution” that produces discrimination in the results of redistricting.

The strategy of California and New York is a high-risk one. An inaccurately low count risks reducing state revenue from federal funds. Congress has given the census the purpose of providing the basis for allocating much federal funding, an assignment that, although critical, is not required by the Constitution.

If their court challenges to the citizenship question ultimately fail, as they should, California and New York likely will have achieved exactly what they say they fear: lower census participation by noncitizens. Whatever political advantage and ideological satisfaction their actions may serve, those actions do not benefit the residents of California and New York.

California’s fight to prevent collection of accurate citizenship data, however, is otherwise understandable in terms of power politics. California’s population has continued to grow, although it has slowed in recent years. The increase in California’s population between 2006 and 2016 is reported to be about 3.1 million. Yet, in that same period, California is also reported to have lost about 1.2 million more people to other states than it gained from other states. Also, the number of births, minus deaths, during that period is only about 2.8 million. Thus, adding the net number of births to the net number lost to other states should produce an increase in population for the 2006-2016 period of only about 1.6 million. The additional increased population of 1.5 million during just this 10-year period came from out of the country.

The census-question litigation is simply a fight over whether the U.S. will enforce the legal distinction between citizens and aliens who enter the country illegally.

Posted in Department of Commerce v. New York, Symposium before the oral argument in Department of Commerce v. New York, Featured

Recommended Citation: John Baker, Symposium: Questioning citizenship versus questioning the question, SCOTUSblog (Apr. 3, 2019, 11:54 AM), https://www.scotusblog.com/2019/04/symposium-questioning-citizenship-versus-questioning-the-question/