by Kevin Daley
The Supreme Court ordered further proceedings in the dispute over a citizenship question on the 2020 census form Thursday, saying the Trump administration apparently concealed its true reason for adding the query.
Chief Justice John Roberts delivered the Court’s opinion, portions of which were unanimous.
“It is rare to review a record as extensive as the one before us when evaluating informal agency action — and it should be,” Roberts wrote. “But having done so for the sufficient reasons we have explained, we cannot ignore the disconnect between the decision made and the explanation given. Our review is deferential, but we are “not required to exhibit a naiveté from which ordinary citizens are free.”
The Department of Commerce, which supervises the Census Bureau, must now identify a more developed explanation for the citizenship question, and present it to the courts for approval.
A coalition of advocacy groups including the American Civil Liberties Union (ACLU) joined left-leaning state and city governments to sue the administration after Commerce Secretary Wilbur Ross ordered the Census Bureau to include the citizenship question. The plaintiffs fear such questions discourage minority participation.
Since seats in Congress and federal funds are apportioned on the basis of population, the plaintiffs fear losing legislative representation and federal aid. Some figures suggest as many as 6 million individuals could be excluded from the census count if the citizenship question is incorporated. The Constitution requires an “actual enumeration” of persons.
In a somewhat unusual move, the high court agreed to take the census case before a lower federal appeals court had a chance to review it. The Trump administration told the justices that the census forms must be finalized in June to ensure timely printing and distribution.
The Court appeared poised to allow the citizenship question during oral arguments in April. The dispute was upended at a late stage, however, when the plaintiffs claimed to uncover decisive evidence proving the administration means to use granular citizenship data to give a boost to Republicans during the redistricting process — and that government witnesses concealed as much during the litigation.
That evidence, the plaintiffs claim, shows that top census aides worked with a Republican redistricting guru who found that redistricting based on voting age population — instead of the total number of people — would give an advantage to “Republicans and non-Hispanic whites.”
The administration vigorously denied those allegations in its own counter-filings, accusing the plaintiffs of waging an “eleventh-hour campaign to improperly derail the Supreme Court’s resolution of the government’s appeal.” Speaking after the plaintiffs lodged those allegations, senior members of the administration denied any such partisan conspiracies in a closed-door testimony before a congressional committee.
U.S. District Judge Jesse Furman found the administration unlawfully appended the citizenship question to the census survey in a sweeping January ruling, writing that the government had committed “a veritable smorgasbord of classic, clear-cut Administrative Procedure Act violations.” That means the government failed to follow rules and procedures proscribed by law when it changed the census form.
For example, Furman said Ross was hiding his true reason for ordering the Census Bureau to include the citizenship question. The Commerce Department supervises the Census Bureau.
“Finally, and perhaps most egregiously, the evidence is clear that Secretary Ross’s rationale was pretextual — that is, that the real reason for his decision was something other than the sole reason he put forward in his memorandum,” Furman wrote.
Two subsequent decisions reached similar conclusions, including findings that the citizenship question violated the Constitution.
The citizenship question was a common feature of the census form until the 1950s. President Donald Trump claimed executive privilege over documents relating to the census on June 12. The Justice Department told House Democrats that those records include “attorney-client communications, attorney work product, and deliberative communications.”
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Kevin Daley is a reporter for the Daily Caller News Foundation.
Photo “U.S. Census Worker” by U.S. Census.