SUPREME COURT AT LEAST TEMPORARILY BLOCKS TRUMP ADMINISTRATION FROM ADDING CITIZENSHIP QUESTION TO THE 2020 CENSUS

Written by: Taher Kameli, Esq.

On any number of issues affecting immigrants, the Federal judiciary has blocked anti-immigration efforts by the Trump administration.  Generally, these actions by Federal judges have come at the District Court and Court of Appeals levels. However, on June 27, the Supreme Court also acted against an anti-immigration policy of the Trump administration, at least temporarily blocking it from adding a citizenship question to the 2020 census.

The case (Department of Commerce v. New York, Docket No. 18-966) arose from the decision in March, 2018 by Secretary of Commerce Wilbur Ross to include a question about citizenship in the 2020 census.  Secretary Ross explained that asking every person about their citizenship in the 2020 census would help the Department of Justice to better enforce Federal voting rights laws.  Secretary Ross’ decision to add the citizenship question to the census drew an immediate legal challenge from New York, other state and local governments, and immigrants’ rights groups, arguing that a question about citizenship in the census would lead to inaccurate results because households with undocumented immigrants would not respond to the census.  Such “non-responses” would understate the correct population in states with large immigrant populations (generally “pro-Democratic Party” states), resulting in the loss of billions of dollars of Federal funding, and possibly seats in Congress and electoral votes, for such states.

After oral argument had been completed in late April, the case took an interesting turn when evidence was found in late May on hard drives of a deceased Republican redistricting strategist, Thomas Hofeller, suggesting that the citizenship question was added to the census to provide whites and Republicans with an advantage in future elections.

In a fractured decision (4 separate opinions were written in the case), Chief Justice John Roberts stated, “[V]iewing the evidence as a whole, we share the District Court’s conviction that the decision to reinstate a citizenship question cannot be adequately explained in terms of DOJ’s request for improved citizenship data to better enforce the VRA [Voting Rights Act].  Several points, considered together, reveal a significant mismatch between the decision the Secretary made and the rationale he provided. 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. . . . Altogether, the evidence tells a story that does not match the explanation the Secretary gave for his decision. . . . [U]nlike a typical case in which an agency may have both stated and unstated reasons for a decision, here the VRA enforcement rationale – the sole stated reason – seems to have been contrived.  We are presented, in other words, with an explanation for agency action that is incongruent with what the record reveals about the agency’s priorities and decisionmaking process. It is rare to review a record as extensive as the one before us when evaluating informal agency action – and it should be. But having done so for the sufficient reasons we have explained, we cannot ignore the disconnect between the decision made and the explanation given. . . . 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.  In these unusual circumstances, the District Court was warranted in remanding to the agency, and we affirm that disposition. . . . We do not hold that the agency decision here was substantively invalid. But agencies must pursue their goals reasonably. Reasoned decisionmaking under the Administrative Procedure Act calls for an explanation for agency action. What was provided here was more of a distraction”. Chief Justice Roberts’ above opinion was joined in by Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan, and was dissented in by Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh (resulting in a 5-4 decision).

The decision in Department of Commerce v. New York leaves open the possibility that the Trump administration could come up with an adequate explanation for the need for a citizenship question and include such question in the census.  However, as 2020 census forms must be printed soon, it is uncertain if the Trump administration will have sufficient time to argue in court for a proper explanation for purposes of the 2020 census.  While it was the intention of the Census Bureau to start printing forms by July 1 (4 days after the Supreme Court decision), during the litigation, Census Bureau officials advised that the deadline for finalizing forms theoretically could be pushed back to October 31.

The case of Department of Commerce v. New York once again exemplifies the important role of the Federal judiciary in opposing the anti-immigration efforts of the Trump administration.  To succeed in Federal court, immigrants need to retain attorneys such as the Law Offices of Kameli and Associates, which has successfully represented immigrants in court for many years.  If your rights as an immigrant are being challenged by the Trump administration on any issue, please contact the Law Offices of Kameli and Associates, at taher@kameli.com or 312-233-1000, for help.