The Trump administration now has a choice: leave the citizenship question off the 2020 census, or keep fighting — against the clock.
On Thursday, the Supreme Court made an unexpected decision on the lawsuit over the Trump administration’s efforts to add a question asking about United States citizenship to the 2020 census. It didn’t uphold the citizenship question — the decision it was expected to make. But it didn’t bar the question from being added either.
Instead, in a partly unanimous opinion (with several different splits along the way) written by Chief Justice John Roberts, the Court said the Trump administration’s Department of Commerce couldn’t add the citizenship question for now. The administration’s justification for adding the question, enforcing the Voting Rights Act, was a pretext — essentially a lie offered after the fact to justify adding the question — rather than a real reason for making the decision.
But it gave the administration the opportunity to try again by offering more genuine reasons for wanting to add one.
The question is when it will be able to do that.
The census lawsuit has been rushed through the legal process because forms have to be finalized well in advance of the census next spring. The Trump administration has said that it needs to finalize those forms by Monday, June 30.
Now it has to make a choice. It can stick to its timetable and let the citizenship question drop. Or it can take Roberts up on his offer and come up with a different rationale — fighting two lawsuits, in New York and Maryland, in the hopes of winning both of them over the course of a few months.
Adding a citizenship question is legal — but the Commerce Department lied about why it wanted one
In February 2018, the Trump administration announced that it would add a question to the 2020 census, which every household in the United States is legally required to fill out, about whether each member of the household was a US citizen.
The Department of Commerce, which administers the census, said it was adding the question at the request of the Department of Justice. Specifically, Commerce said, the DOJ wanted better citizenship data so it could enforce the Voting Rights Act by guaranteeing that minority citizens weren’t having their votes diluted or marginalized.
That explanation didn’t wash to voting rights advocates. Instead, they and immigration advocates worried that the citizenship question could be used to allow states to draw legislative districts based on the number of citizens in a district rather than the number of residents, which would hurt Latinos. Furthermore, they worried, having an official government form in the age of Trump ask people if they were US citizens would make immigrants and their families afraid to return the form — leading to an undercount in the census that made America appear whiter than it really was.
With these concerns in mind, a coalition of blue states and advocacy groups sued the administration over its decision to add the citizenship question. The Trump administration has faced many lawsuits over its use of executive power. What set the census case apart is that it actually went to trial rather than pushing for a quick preliminary ruling — meaning the plaintiffs had opportunities to gather evidence that they don’t have in faster cases.
And the evidence bore out the plaintiffs’ suspicion that the Voting Rights Act wasn’t the real reason the Trump administration wanted the citizenship question asked.
This is the key passage of Roberts’s decision:
The record shows that the Secretary began taking steps to reinstate a citizenship question about a week into his tenure, but it contains no hint that he was considering VRA enforcement in connection with that project. The Secretary’s Director of Policy did not know why the Secretary wished to reinstate the question, but saw it as his task to “find the best rationale.” Id., at 551. The Director initially attempted to elicit requests for citizenship data from the Department of Homeland Security and DOJ’s Executive Office for Immigration Review, neither of which is responsible for enforcing the VRA. After those attempts failed, he asked Commerce staff to look into whether the Secretary could reinstate the question without receiving a request from another agency. The possibility that DOJ’s Civil Rights Division might be willing to request citizenship data for VRA enforcement purposes was proposed by Commerce staff along the way and eventually pursued.
Even so, it was not until the Secretary contacted the Attorney General directly that DOJ’s Civil Rights Division expressed interest in acquiring census-based citizenship data to better enforce the VRA. And even then, the record suggests that DOJ’s interest was directed more to helping the Commerce Department than to securing the data.
Given all this, Roberts found, the VRA rationale was “pretextual” — it was clearly a fig leaf added after the fact to defend against lawsuits like this one, rather than the underlying reason Commerce Secretary Wilbur Ross wanted a citizenship question.
Roberts made it extremely clear that Ross might have legal and constitutional reasons for wanting to add the question — and he averred that given the evidence available to him, choosing to add the question was a legitimate choice to make. But he scolded the Trump administration for essentially lying about its process:
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.
The Trump administration has to pick between its own census deadlines and the citizenship question
Under normal circumstances, the Supreme Court wouldn’t have issued a ruling in this case for several more months, or longer. It agreed to skip part of the usual appeals process in order to give an answer on the citizenship question in time for the Commerce Department to finalize and start printing forms. Commerce said that needed to happen by June 30, this coming Monday.
But it turns out the Supreme Court decided that this opinion shouldn’t be the last word — that it couldn’t let the citizenship question get added under the current circumstances, but that the Trump administration could come up with more evidence that would explain its real rationale and submit it for court approval.
So now, the Trump administration has a choice.
It can stick with the June 30 deadline and just leave the citizenship question off the census, accepting defeat.
Or it can push back its own deadline and keep trying to add the question.
The Commerce Department has acknowledged that in an emergency, with “extraordinary effort,” it could finalize the census forms as late as October 30 and still run the census in time in 2020. So in theory, it could spend some time gathering new evidence, issue a new decision adding the question to the census, and then get the courts to review that decision and uphold it as correct.
But it would have to do all that within four months, tops. The existing case took a year to adjudicate at trial, and another five months from the initial ruling to Thursday’s SCOTUS decision.
Because the deadline is hard and fast, the courts probably could rule as quickly as they needed to. But it’s not clear what kind of case the administration could make in that time. If the rationale it spent all of 2017 putting together was found to be pretextual, it’s not clear that it would be able to be more honest and more persuasive in the course of a few weeks.
Even if Trump does come out with another rationale, there’s still another lawsuit to be dealt with
What makes the near future even more complicated is that there’s a separate ongoing lawsuit over the decision to add a citizenship question, and the Supreme Court’s ruling today doesn’t touch on it at all.
Earlier this week, judges in the Fourth Circuit Court of Appeals ordered another judge, in Maryland, to reopen the case in a lawsuit over the census there, in order to determine whether the new evidence showed that the census question violated the Equal Protection Clause of the 14th Amendment. That’s not a question the Supreme Court considered in this case — despite a last-minute plea from the Trump administration on Tuesday night for the court to preemptively rule on it and stop the Maryland case from proceeding.
The judge in Maryland has promised to issue an emergency ruling by Friday on whether to stop the Commerce Department from finalizing census forms with the citizenship question on them — though it’s no longer clear whether that will be necessary, as the Commerce Department will already have to blow through its June 30 deadline if it wants to keep fighting to add the citizenship question. The case will then continue throughout the summer.
If the Trump administration can’t come up with a new rationale for adding the citizenship question to satisfy the New York case, the Maryland case won’t matter; blocked is blocked. But even if it does come up with a new rationale, it will have to prevail in both cases — or at least get the Supreme Court to side with it in both of them. And it will have to do so as quickly as humanly possible.
The damage may have already been done
The key argument against adding a citizenship question to the census was that it would intimidate people, especially Latinos, from responding to the decennial count. The census is supposed to be an “actual enumeration” of everyone living in the US at the time, and demographers aren’t allowed to use modeling to make up the difference if they believe that some groups haven’t responded as frequently to it.
But even if a citizenship question isn’t ultimately reinstated, that doesn’t mean the fear of an undercount is going away. Even before Trump, it was harder to get immigrants to respond to the census than citizens — and the fear of Trump was already expected to exacerbate that challenge, even before the citizenship question was proposed.
Last year, a bureau researcher flagged to a census advisory committee that focus groups and field tests were having serious problems getting immigrants to complete the survey.
During one field test, a respondent fled her home when she started getting worried about the questions. Another family moved abruptly after an interview with a census employee, and others halted the questions or deliberately lied.
Three years ago, researchers said, they hadn’t had problems like this. But now, one respondent told an interviewer, “the possibility that the census could give my information to internal security and immigration could come and arrest me for not having documents terrifies me.”
The government can’t actually do that. Federal law strictly prohibits the Census Bureau from sharing information. But under Trump, it’s really hard for any government official to persuade immigrants, or even US-born Latinos, that she can be trusted to protect them.
Even though the 2000 and 2010 censuses didn’t ask about citizenship, experts and advocates were still worried that immigrants (particularly unauthorized immigrants) would be intimidated out of filling out a government form or speaking to a government interviewer.
In 2000, the Clinton administration agreed not to conduct any immigration raids during the time the census was in the field, to reduce the amount of anxiety being stirred up in immigrant communities. In some neighborhoods, census takers put up signs saying “NO INS. NO FBI. NO CIA. NO IRS.”
In 2010, when immigration enforcement under President Barack Obama was at its most aggressive, Immigration and Customs Enforcement made no such reassurances (and, indeed, continued to conduct raids in some areas while census takers were trying to conduct follow-up surveys). But the Census Bureau itself made a big push to reach out to Latinos, especially Spanish speakers, to reassure them that the census was for them and that it was important for them to fill out.
The effort appears to have worked. A survey conducted by the Pew Research Center at the time found that foreign-born Latinos were enthusiastic about the census and extremely confident that their data wouldn’t be used against them; US-born Latinos (who were by definition US citizens), on the other hand, were distrustful.
Mark Hugo Lopez, director of the Pew Hispanic Trends Project, hypothesizes that this was a result of the Census Bureau’s huge promotional push on Spanish-language media — something much more likely to target foreign-born Latinos than American-born ones.
Advocates are worried that the Trump administration has created an atmosphere way too fearful for a few radio ads to fix. The Census Bureau’s November presentation quoted one researcher: “The politics have changed everything recently.” Immigrants — not just unauthorized immigrants but some types of legal immigrants as well — are highly anxious about their security under Trump and leery of interacting with any government officials as a result. And if US-born Latinos were skeptical of the government in 2010, they are likely to be even more skeptical now.