The Trump Administration wants to put a question on the 2020 US Census: are you a US Citizen. <\/p>\n\n\n\n
It seems like such a simple, seemingly innocuous question. Why shouldn\u2019t the census ask this? Why shouldn\u2019t folks be required to tell the Census Bureau their citizenship status? What could be the harm?<\/p>\n\n\n\n
The Census, written directly into the Constitution, requires the counting of \u201call persons\u201d in the United States.\u00a0\u00a0It 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.\u00a0\u00a0Indians were excluded as they were supposedly outside of US sovereign control.<\/p>\n\n\n\n
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 \u201cenumeration,\u201d 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 \u201cenumeration?\u201d<\/p>\n\n\n\n
This is the era of ICE roundups, detention camps, and Presidential tweets threatening removal.\u00a0\u00a0An 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; \u201cprofession-bank robber.\u201d\u00a0\u00a0\u00a0Non-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.\u00a0<\/p>\n\n\n\n
The Census Bureau promises that the forms are anonymous, never specifically revealed.\u00a0But this is also the era of ICE \u201cambush\u201d meetings, when the undocumented migrants are invited to discuss their status and then find themselves on a plane out of the country.\u00a0\u00a0There is little reason for them to have faith in any government agency.<\/p>\n\n\n\n
So it makes common sense that the \u201cquestion\u201d will make the census less accurate, less minority representative, and more white.\u00a0\u00a0For that reason, this particular question hasn\u2019t been asked since 1950. \u00a0But the Trump Administration has pushed for it to be included.<\/p>\n\n\n\n
The legal record shows that the idea supposedly originated with Commerce Secretary Wilbur Ross.\u00a0\u00a0He then asked the Justice Department to help with \u201cjustification.\u201d\u00a0\u00a0Attorney General Sessions created a rationale for the question helping to enforce the Voting Rights Act.\u00a0\u00a0But it is difficult to see what value it has, and even more shocking that the Trump Administration would care about voting rights.<\/p>\n\n\n\n
It turned out they didn\u2019t. 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 \u201cpopulation\u201d 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.<\/p>\n\n\n\n
After Hofeller\u2019s 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. <\/p>\n\n\n\n
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 \u201cfig leaf\u201d 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.<\/p>\n\n\n\n
Chief Justice Roberts though, left the President a \u201cbackdoor\u201d 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. <\/p>\n\n\n\n
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\u2019s Consumer Protection Division was put in to make the new argument. As former Acting Solicitor General Neil Katyal stated: \u201cThey fired the A Team, and brought in the F Team.\u201d But there is a third problem. <\/p>\n\n\n\n
In the first Court appearance, the Justice lawyers argued \u201cthe need for speed.\u201d 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 \u201cfig leaf\u201d for Chief Justice Roberts, Justice now has to overcome their own arguments about the deadline. It would be hard to argue; \u201cOh, the deadline only applied if we won the case, since we lost we can print the census later.\u201d It\u2019s difficult seeing any of the Court members respecting that.<\/p>\n\n\n\n
But it\u2019s 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 \u201cfig leaf\u201d of Presidential authority, without looking underneath to see the ugly discriminatory intent.. So the new Justice \u201cteam\u201d will try again, even though the \u201cleaf\u201d has already come off, and \u201cwe all know, what we know*.\u201d <\/p>\n\n\n\n