Census symposium: Roberts Court stops the census citizenship question … for now

Juan Cartagena is president and general counsel at LatinoJustice PRLDEF, which filed an amicus brief in support of the challengers in Department of Commerce v. New York.

“Contrived.” Read: fabricated, pretextual, a lie. That’s what a majority of the U.S. Supreme Court found when it examined the Trump administration’s alleged reasons to add a citizenship question to the decennial census in Department of Commerce v. New York. To its credit, the judiciary reaffirmed its independent role as a check to unlawful executive-branch overreach under the Administrative Procedure Act. And in doing so the Supreme Court just effectively ruled, contrary to the Trump administration, that Latinos, and other noncitizens, do count in America.

By a vote of 5-4, the court ruled, in an opinion by Chief Justice John Roberts, that the Trump administration tripped over the procedural hurdles that the government must clear before making hasty and arbitrary decisions. “[W]e cannot ignore the disconnect between the decision made and the explanation given,” Roberts wrote as he referenced the sole reason given by the administration: that it complied with a request by the Department of Justice to insert the citizenship question because it was necessary to review compliance with the Voting Rights Act. Instead, the Supreme Court noted, it was Secretary of Commerce Wilbur Ross who elicited the request from the Department of Justice. “The reasoned explanation requirement of administrative law, after all, is meant to ensure that agencies offer genuine justifications for important decisions, reasons that can be scrutinized by courts and the interested public. Accepting contrived reasons would defeat the purpose of the enterprise. If judicial review is to be more than an empty ritual, it must demand something better than the explanation offered for the action taken in this case.”

For now, at least, the citizenship question is eliminated, but the rest of Roberts’ opinion upheld the administration’s position in almost every other respect. The enumerations clause does permit a citizenship question on the decennial census. Its last-minute addition was still supported by substantial evidence, the court continued. Nor did the secretary violate any of the other provisions of the Census Act, one having to do with the use of statistical sampling, the other with requiring “to the maximum extent possible” the use of other administrative sources for relevant census information as opposed to direct questions, when he added the citizenship question. The administration went too far in Roberts’ opinion when it argued that the secretary enjoyed “unreviewable discretion.” To the contrary, the decision to insert a citizenship question for every household in America is subject to judicial review because, at least for now, the secretary of Commerce is not above the law.

By ruling on procedural grounds under the Administrative Procedure Act, the court never reached the real motivation behind the secretary’s  decision to include a citizenship question in the first place. Indeed, the Supreme Court will not talk about the elephant in the room – the nefarious reasons behind the suppression of Latino political power unearthed in Thomas Hofeller’s hard drives that may see the light of day under the recent decision by the U.S. Court of Appeals for the 4th Circuit in the related case La Union del Pueblo Entero v. Ross. Instead, Roberts refused to delve into the “executive motivation” that prompted the citizenship question because it would represent judicial overreach, and admittedly he didn’t have to because there were no equal-protection-clause claims before him as there are in the 4th Circuit case. So the Supreme Court can avoid addressing the ugly reality already evident in the public record from an administration that coddles white supremacy at nearly every turn. Well before the Hofeller revelations, anyone closely following the pronouncements of this president can legitimately question whether Ross was harboring an invidious intent to stem the growing political strength of Latinx communities when he listened to Trump advisors Steve Bannon and Kris Kobach instead of the Census Bureau’s own experts.

But the Supreme Court never reached that vexing question. Instead it rested on procedural protections in the law to legitimately question how this administration could try to add a question not used in 50 years without properly assessing its impact on today’s count. Indeed, with estimates in the court record of a 14 percent decrease in the response rate of Latinos when the citizenship question is added – one Harvard study pegged that at just over 4 million Latinos – the inclusion of the question would also compromise adherence to the Constitution’s enumeration clause, contrary to what Roberts concluded.

Latino immigrants were already fearful of this administration – and rightfully so based on the documentation found in the amicus brief filed by LatinoJustice and other national Latino organizations. The president begins by vilifying all Mexicans as murderers and rapists on the campaign trail. He issues an executive order to build a wall and repatriate all undocumented immigrants under a deportation prioritization order that includes everyone. He pardons Sheriff Joe Arpiao, the worst manifestation of law-enforcement-based racial profiling in the country. He then rescinds the Deferred Action for Childhood Arrivals program (DACA) in another executive order and does nothing to protect these exemplary immigrants, the vast majority of whom are Latino. The fear by that point is palpable in every barrio. Latinos no longer contact the authorities when they are victims of crime – a 40 percent drop in reported crime by Latinos in Houston, for example. Latinas drop domestic violence claims for fear of being caught and deported if they proceed. After Hurricane Harvey some Latinos hid from rescue teams and similarly, others rejected aid after California’s wildfires. And, over and over again, Latino immigrant parents fear accompanying their own children to school.

For Latinos alone the decision in Department of Commerce v. New York threatened to be our Plessy v. Ferguson. You are separate. You are unwelcome. You don’t count. That was the reign of fear unleashed by this administration before Ross’ decision to include an unnecessary question about citizenship on the decennial census. Imagine for a moment trying to overcome that distrust in government as you encourage full participation in next year’s census in Latinx neighborhoods.

And yet this is exactly what Latino leaders have to do. As a legal matter the Trump administration still has a one-in-a-thousand shot to restore the citizenship question. As a practical matter, a majority of the Supreme Court stood firm against the contrivance and shenanigans of an administration that can’t keep its lies straight.

So, for now, democracy wins. But for those of us who strive to get as accurate a count as possible, the Trump effect must still be overcome. Otherwise, he wins the war while losing a battle.