Terry H. Schwadron
Jan. 24, 2019
The decision by afederal judge last week to block the Trump administrationfrom adding a citizenship question to the 2020 census is a win for those who believe the move was aimed at undercounting immigrants, but it also was a win for common sense.
Yesterday,The Trump administration asked the Supreme Court to bypass its normal procedures and decide quickly whether a question on citizenship legally can be added, despite a slew of misdoings by Commerce Secretary Wilbur Ross to ask the question.
The whole point of the 10-year Census is to count who is in the country, and therefore serve as a guide for distribution of money and services by where it is needed. If you decide not to count classes of people, there’s no way to get effective governmental services to all parts of the country.
It also was a well-deserved slap to Ross for lying about the source and intent of the question.
Any appeal of the decision by Judge Jess Furman in New York must come soon enough to actually distribute the correct materials next year.
A handful of immigrant rights groups had argued that the Trump administration intended to drive down the response rate among those groups when it added the question. Several states and cities, fearful of the outcome of having people volunteer their immigration status, joined the plaintiffs in the suit, arguing that the Trump administration intended to drive down the response rate among immigrant groups when it added the question.
In his opinion, Furman said that the way the Trump administration added the question violated a federal statute, the Administrative Procedure Act (APA). That law requires agencies to carefully study an issue before it implements or changes a policy. The Trump administration failed to do that in adding the citizenship question and the public rationale given by Commerce Secretary Wilbur Ross, who oversees the Census Bureau, Furman said, was “pretextual.”
“Most blatantly, Secretary Ross ignored, and violated, a statute that requires him, in circumstances like those here, to collect data through the acquisition and use of ‘administrative records’ instead of through ‘direct inquiries’ on a survey such as the census,” Furman wrote. “Additionally, Secretary Ross’s decision to add a citizenship question was ‘arbitrary and capricious’ on its own terms: He failed to consider several important aspects of the problem; alternately ignored, cherry-picked, or badly misconstrued the evidence in the record before him; acted irrationally both in light of that evidence and his own stated decisional criteria; and failed to justify significant departures from past policies and practices ― a veritable smorgasbord of classic, clear-cut APA violations,” he continued.
The judge said there was no judgment that the question was unconstitutional.
Having worked a lot with Census results in a variety of journalistic projects, it is clear that an inaccurate census could have severe and lasting consequences. The survey is used to determine how congressional seats are allocated to the states and how roughly $675 billion in federal funds are disbursed.
The Trump administration had argued that it was well within its authority to add the question and that doing so would not depress the overall response rate. Even if fewer people initially chose to respond to the survey voluntarily, the Census Bureau had robust plans to follow up with people, officials said.
The Census is asking about citizenship on surveys that go out to a sample of households.
It also is clear that Ross was misleading, at best, in identifying its source. Ross said in March that he began exploring adding the question after the Justice Department said it needed better citizenship data to enforce it. But documents disclosed as part of the lawsuit revealed that Ross was interested in adding the question months beforethe Justice Department sent him its request. Ross also disclosed he was the one who initially approached the Justice Department about making the request.
Because the data in the census is so valuable, officials rigorously test questions before they are added to the survey. The citizenship question, however, had not been tested.
The former head of the Justice Department’s civil rights division, responsible for enforcing the Voting Rights Act, also said in a depositionthat he was unsure whether citizenship data potentially collected in the census would be more accurate than the data it currently has access to. The statement supported the plaintiffs’ argument that the DOJ did not really need a citizenship question on the census and its request for one was driven by other motivations
There is an ongoing dispute in the trial over what evidence could be considered in reaching the decision. The Justice Department argued that courts should not be allowed to consider information about the decision other than the documents it voluntarily assembled. The plaintiffs fought to have access to more information and wanted to depose Ross, but the Supreme Court blocked them from doing so in October, and will hear arguments in February.
Let’s hope that common sense will prevail.