In Census Case, No Basis for Citizenship Question

      Wilbur Ross's various ethics issues as secretary of Commerce place him among a gaggle of President Trump's discreditable Cabinet members. But Ross may belong at the top of that list now that two federal judges have found that he lied to Congress and violated executive branch regulations, congressional statutes, and at least one constitutional clause in his obsessive effort to add a citizenship question to the 2020 national census.
      Ross began hectoring his staff within his first weeks at Commerce about adding a citizenship question to the short-form Census questionnaire due to be distributed to all U.S. households early next year. He needed a full year in office before getting his ducks in a row to make the decision in a memorandum dated March 26, 2018. He had been egged on by, among others, the former White House aide Steve Bannon, the vote fraud-obsessed former Kansas secretary of state Kris Kobach, and at least two Republican senators: Arkansas' Tom Cotton and Texas's John Cornyn.
      With no expertise himself in demographics or statistics, Ross persisted in the face of unanimous advice from former Census Bureau directors, academic demographers, and the American Sociological Association that a citizenship question will inevitably result in an undercount of several millions among individuals in hard-to-count group such as immigrants and non-English speakers. The resulting undercount could have real-world consequences for some states and some localities in the form of reduced federal funding or proportionate reduction in local funding from state coffers.
      Federal court judges in New York and San Francisco have blocked Ross's efforts so far in suits brought respectively by a coalition of 18 states, 15 municipalities, and various immigration advocacy groups; and by the state of California, the city of San Jose, and the Black Alliance for Immigration. The Trump administration fast-tracked the New York case, Department of Commerce v. New York, to the Supreme Court by asking the justices to schedule the appeal for argument in April without waiting as usual for a ruling by a federal appeals court.
      Trump administration officials and supporters have correctly noted that the once-every-decade census required under the Constitution to apportion seats in the U.S. House of Representatives included questions about citizenship beginning in 1820 and continuing until 1950. The longer-form American Community Survey, distributed to randomly selected households, does include a citizenship question, but the Census Bureau, part of the Commerce Department and thus subject to Ross's direction, dropped the citizenship question from the more comprehensive survey by the 1960 census because of evidence that it would reduce participation and thus result in a significant undercount.
      Judge Jesse Furman in New York was the first of the two Obama-appointed judges to find Ross's decision to add the citizenship question illegally "arbitrary and capricious" as violating not only the Administrative Procedure Act (APA) but also a Census Act provision enacted in 1976 to require three years' prior notice to Congress before adding questions to the all-household short-form questionnaire. Furman's admittedly long 277-page decision issued on Jan. 15 opened by noting that the government's own experts and documents confirmed that a citizenship question "will result in a significant reduction in self-response rates among noncitizen and Hispanic households."
      Furman, formerly an aide to the Republican attorney general Michael Mukasey and later a clerk to the centrist-leaning federal appeals court judge José Cabranes and Supreme Court justice David Souter, also found Ross's decision in violation of guidelines issued by the Bush administration's Office of Management and Budget (OMB) in 2006. Those guidelines, applicable to all federal statistical agencies, impose among other requirements a prohibition against "political and other undue external influence in developing, producing, and disseminating statistics."
      The plaintiffs in the New York case also alleged that Ross's decision amounted to "invidious discrimination" in violation of the equal protection component of the Fifth Amendment's Due Process Clause, but Furman found they had not produced sufficient evidence on that count. On the other hand, Furman found that Ross had violated the APA in any number of respects by failing to follow required procedures and by making a decision that was "unsupported by, or even counter to, the evidence before the agency."
      Judge Richard Seeborg's 126-page decision in the California case, issued last week [March 6], went one step beyond Furman's by finding Ross's decision to violate the requirement in the Constitution's Enumeration Clause (Art. I, sec. 2, cl. 3) for an "actual enumeration" of inhabitants every 10 years to apportion members of the House of Representatives among the states. Seeborg, like Furman a former federal prosecutor appointed to the bench with no history of liberal Democratic politics, went further than Furman in refuting one of the justifications Ross claimed for his decision.
      Ross claimed, in testimony before a congressional committee, that he added the citizenship question at the request of the Justice Department, which purportedly saw the information as useful in enforcing the federal Voting Rights Act. In fact, the then attorney general Jeff Sessions forwarded the request only after Ross and his staff had repeatedly importuned Justice to make it.
      With all these legal defects, Ross's decision ought not stand after serious judicial review at the Supreme Court. With two Trump appointees added to a Court already dominated by executive branch-leaning justices, however, that outcome of the case is far from certain.