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Full disclosure: I haven’t finished reading U.S. District Judge Jesse Furman’s decision halting the government’s attempt to add a citizenship question to the upcoming 2020 Census. Furman’s opinion is 277 pages long. I require Biglaw money before I read a 277 page judicial opinion. Sorry I’m not sorry.
But I’ve read some of it and read reports about the rest and Jesus Christ did the Trump administration, especially Commerce Secretary Wilbur Ross get smacked around. I mean, I don’t think anybody has spoken to Wilbur Ross like this in his entire life.
For those playing along at home, the Trump administration wanted to add a question about citizenship status to the Census. The Supreme Court has long determined that citizenship status is irrelevant to the Census, because apportionment of government services needs to take into account how many people are living in the United States, “status” be damned. You can see the good government reasons for that: if you are, say, evacuating an area because a hurricane is coming, you need to know how many people live in the area, because hurricanes are not bigots.
Remember, that we have a Census at all is Constitutionally mandated, but the manner in which it takes place is not. Here’s the language from Article I, Section 2 of the Constitution.
Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons. The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct.
Oh, whoops, I used the original text. How very Federalist Society of me. Here’s the updated language from the 14th Amendment:
Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed.
We already do the Census in the dumbest possible way. The Supreme Court has interpreted the Census Act of 1976 to require a direct headcount. But sending everybody something in the mail and hoping they respond is inefficient and inaccurate. A statistical sampling would lead to far more accurate results, especially when it comes to poorer communities. But, as you can imagine, the same party that doesn’t want everybody to vote is allergic to the idea that everybody should be counted.
It’s that same resistance to make the Census accurate is how Trump and the Republicans decided that adding the citizenship question to the Census would further their goals. Ross proposed adding the question nearly as soon as he took office. Non-citizens would be intimated from filling out the census form, worried that answering the question would blow up their spot. You could emphasize that it won’t, that the census form cannot be used against them, but who would believe you? Who would believe that this administration wouldn’t use any method, fair or unfair, to harass immigrants?
Anybody paying attention knows that Trump and Ross want to add this question to make the Census even less accurate with regards to non-white immigrants, legal or otherwise. But sometimes it’s difficult to get a court to take judicial notice of the cynical, anti-democratic reasons behind Trump’s policies, even as they’re striking them down.
Not this time. Not with this judge. Judge Furman, an Obama appointee, was having absolutely none of it. From the New York Times:
In a lengthy and stinging opinion, Judge Jesse M. Furman of the United States District Court in Manhattan said that Wilbur L. Ross Jr., the commerce secretary, broke “a veritable smorgasbord” of federal rules when he ordered the citizenship question added to the census nearly a year ago. Judge Furman said Mr. Ross cherry-picked facts to support his views, ignored or twisted contrary evidence and hid deliberations from Census Bureau experts.
Judge Furman also criticized Mr. Ross and his aides for giving false or misleading statements under oath as they struggled to explain their rationale for adding the question.
Judge Furman also accused Ross of trying to “launder” his reasoning through another agency.
In his ruling, Judge Furman said he could not discern Mr. Ross’s real reason for seeking to add the question to the census. But he said it was clear that Mr. Ross and his aides had decided within months of taking office in February 2017 that he wanted to add the question, and that the goal of the Justice Department letter “was to launder their request through another agency — that is, to obtain cover for a decision that they had already made.”
That judge-speak for “I see what you did there.”
The Census forms are supposed to be locked down this summer, so if the Trump administration wants to appeal, they’ll have to act quickly. The next logical step would be to appeal this ruling to the Second Circuit, but the result is likely to be the same and the effort will likely take all of the remaining time on the clock. The Trump administration might try to do an end-run around the Second Circuit and appeal directly to the Supreme Court. That would be irregular, but we know the Trump administration doesn’t care about that.
It’s hard to predict exactly what the Supreme Court would do with this case. On the one hand, you have five conservative justices who have shown nothing but hostility to the notion that everybody in this country should get to vote, I highly doubt that they think everybody deserves to be counted. On the other hand, Ross has terrible arguments for why this question must be included. It’s such an obvious attempt to depress the Census count. And they’ve already decided that the executive branch doesn’t have unilateral authority to change how the Census is conducted — if they did then we’d have sampling already.
If there is an opportunity to make democracy harder for non-whites to access, I assume John Roberts and Co. will do their thing and rubber stamp Trump’s bigoted intentions. But you never know. The trial court issued a 277-page takedown of this dumb question. Overruling it, 5-4, without letting the Second Circuit even weigh in, would be another unabashedly partisan decision from the Roberts Court.
Court Blocks Trump Administration From Asking About Citizenship in Census [New York Times]
Elie Mystal is the Executive Editor of Above the Law and the Legal Editor for More Perfect. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.
New York Judge Fully Annihilates Citizenship Question For Upcoming Census curated from Above the Law
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