Judiciary

SCOTUS Leans Toward Census Citizenship Question

Once again the High Court looks poised to reverse a lower court's anti-Trump ruling.

Thomas Gallatin · Apr. 24, 2019

On Tuesday, the Supreme Court heard arguments in Department of Commerce v. New York, a case that challenges whether the Trump administration has the legal authority to include a citizenship question in the upcoming 2020 Census. As The Wall Street Journal reports, “Eighteen or so states argue that a citizenship question will deter immigrants from responding to the Census and result in an undercount of Hispanics, which would reduce federal funding and their representation in Congress. Three federal judges have sustained this extraordinary legal claim.”

As directed by the Constitution, the federal government is to conduct a census of the U.S. population every 10 years, and from 1790 to the present that directive has been followed. From 1820 to 1950, a citizenship question was included in the census, and up through the 2000 Census a citizenship question was included in the long-form questionnaire that was given to one-sixth of households. In other words, the 2010 Census containing no citizenship question is the outlier. And it is this census outlier that those opposed to the citizenship question are arguing should be the legal precedent.

The problem for these folks is that the Census Act grants the commerce secretary the authority to conduct the census “in such form and content as he may determine.” While they may contend that the inclusion of a citizenship question will negatively impact the ability of the census to provide accurate population numbers, claiming that those living in the country illegally will not return the questionnaire out of fear is merely speculative. Furthermore, they avoid the real issue, which is the electoral impact of high numbers of noncitizens, whether legal or illegal, on the representative governance rights of U.S. citizens.

As the oral arguments were submitted, it became apparent that the conservative justices weren’t buying the main argument against the inclusion of a citizenship question. Justice Samuel Alito expressed his skepticism, musing, “What jumps out is the fact that citizens and noncitizens differ in a lot of respects other than citizenship. They differ in socioeconomic status. They differ in education. They differ in language ability. I don’t think you have to be much of a statistician to wonder about the legitimacy” of the claim that the inclusion of a citizenship question would lower response rates. Justice Neil Gorsuch noted that “it’s not like this question is improper to ask.”

The expectation is that the Court will issue its decision relatively quickly, as the Census Bureau needs to begin the process of printing census materials in June. A ruling in favor of America (not just Trump) would undo a significant plank in the Democrats’ efforts to rig elections in their favor.

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