To Tell the Truth
The Trump Administration wants to put a question on the 2020 US Census: are you a US Citizen.
The Question
It seems like such a simple, seemingly innocuous question. Why shouldn’t the census ask this? Why shouldn’t folks be required to tell the Census Bureau their citizenship status? What could be the harm?
The Census, written directly into the Constitution, requires the counting of “all persons” in the United States. It required that folks who are NOT citizens be counted, and in fact, contained the infamous clause defining slaves as three-fifths of a person for the purpose of counting. Indians were excluded as they were supposedly outside of US sovereign control.
So if the census was supposed to count every person, including a fraction of each slave, then the original intent of the founding fathers was clear: count everyone, not just citizens. That number, the “enumeration,” was used to divide the states into Congressional Districts, and later to provide Federal aid to the states. Any action that interferes with the specific goal should clearly be questionable. So why would a question about citizenship status interfere with a full “enumeration?”
The Problem
This is the era of ICE roundups, detention camps, and Presidential tweets threatening removal. An undocumented person filling out the census form admitting to being a non-citizen is a likely as a bank robber filling out their income taxes with; “profession-bank robber.” Non-citizens who want to stay in the United States would simply avoid filling out the forms, and everyone in their household, citizen or not, would fail to be counted.
The Census Bureau promises that the forms are anonymous, never specifically revealed. But this is also the era of ICE “ambush” meetings, when the undocumented migrants are invited to discuss their status and then find themselves on a plane out of the country. There is little reason for them to have faith in any government agency.
So it makes common sense that the “question” will make the census less accurate, less minority representative, and more white. For that reason, this particular question hasn’t been asked since 1950. But the Trump Administration has pushed for it to be included.
The legal record shows that the idea supposedly originated with Commerce Secretary Wilbur Ross. He then asked the Justice Department to help with “justification.” Attorney General Sessions created a rationale for the question helping to enforce the Voting Rights Act. But it is difficult to see what value it has, and even more shocking that the Trump Administration would care about voting rights.
It’s About Power
It turned out they didn’t. The idea of putting the question on the census actually originated with North Carolina Republican consultant Thomas Hofeller. Hofeller, recently deceased, was an expert in gerrymandering political districts for the Republican Party. He realized that the impact of the citizenship question would be to reduce the counted “population” in many Democratic districts, allowing Republicans to get more power by enhancing their relative strength. By under-counting not just the undocumented, but their children, relatives and friends living with them; Republicans win.
After Hofeller’s death, his estranged daughter turned his computer files over to the organizations suing the government to stop the question. It showed that both the Department of Justice and Commerce were lying to the Courts and to Congress about the origin and purpose of the question.
This Supreme Court, with a conservative majority favoring broad Presidential powers, would have been willing to allow the President to place the question on the census (a well educated guess.) While the true reasons were discriminatory and therefore illegal, the avowed Voting Rights argument was enough “fig leaf” to cover a Court majority. But the revelation of the Hofeller information pushed the Chief Justice far enough that he sided with the four liberals on the bench, and ordered the question left off.
Chief Justice Roberts though, left the President a “backdoor” to re-litigate the question. If the Administration could come up with a non-discriminatory reason, then they could have a new hearing on the case.
The Do-Over
So the Trump Justice Department is struggling to rephrase their Supreme Court argument, and deal with the Hofeller information. The entire Justice Department team, the experts on Constitutional litigation who made the original argument, were removed or quit. Instead, a team from the Justice Department’s Consumer Protection Division was put in to make the new argument. As former Acting Solicitor General Neil Katyal stated: “They fired the A Team, and brought in the F Team.” But there is a third problem.
In the first Court appearance, the Justice lawyers argued “the need for speed.” They used it to gain an expedited hearing in the Supreme Court, saying the Census had to go to the printer on June 30, 2019. So even if they find another “fig leaf” for Chief Justice Roberts, Justice now has to overcome their own arguments about the deadline. It would be hard to argue; “Oh, the deadline only applied if we won the case, since we lost we can print the census later.” It’s difficult seeing any of the Court members respecting that.
But it’s the Trump Administration, and all sorts of things happen that are difficult to imagine. Four members of the Court were willing to hide behind the “fig leaf” of Presidential authority, without looking underneath to see the ugly discriminatory intent.. So the new Justice “team” will try again, even though the “leaf” has already come off, and “we all know, what we know*.”
*of course, from the musical Hamilton
