Trump Administration Appeals to Supreme Court on Census Question

(Bloomberg) -- President Donald Trump's administration asked the U.S. Supreme Court to allow a question about citizenship on the 2020 census, filing a quick appeal in the hope of resolving the issue in time to start printing questionnaires in June.

The appeal challenges a Jan. 15 trial court ruling that barred the Commerce Department from including the question. U.S. District Judge Jesse Furman in New York said Commerce Secretary Wilbur Ross had committed a “veritable smorgasbord” of violations of the federal law that governs administrative agencies.

U.S. Solicitor General Noel Francisco asked the court to put the case on a fast track by skipping the appeals court level and hearing arguments either in April or in a special sitting in May. The court had been scheduled to consider a preliminary question on Feb. 19 but scrapped that session after Furman ruled.

Francisco said the Commerce Department has broad discretion to decide what to include on the census.

"Neither the Constitution nor the Census Act provides any standard by which to judge the lawfulness of including (or excluding) a given question on the census form," he wrote.

Advocacy organizations and a New York-led group of states, cities and counties are suing, saying the citizenship question discriminates against immigrants and will reduce accuracy by lessening participation. A census undercount in areas with large numbers of non-citizens could shift congressional districts and federal dollars away from those communities.

Voting Rights Act

Ross said last March that he was adding the citizenship question at the behest of the Justice Department, which had said it would help with enforcement of the Voting Rights Act, the landmark 1965 law designed to protect minority rights at the polls.

Furman said that explanation didn't add up. The judge said Ross decided to add the question long before he received the Justice Department request, and after discussing the issue with Trump adviser Steve Bannon and then-Kansas Secretary of State Kris Kobach. Both are staunch advocates of curbing illegal immigration.

Furman said Ross had violated the Administrative Procedure Act in multiple ways.

“He failed to consider several important aspects of the problem; alternately ignored, cherry-picked, or badly misconstrued the evidence in the record before him; acted irrationally both in light of that evidence and his own stated decisional criteria; and failed to justify significant departures from past policies and practices,” Furman wrote in his 277-page ruling.

The Trump administration says census-takers have asked about citizenship as far back as 1820. The last time every household was asked about citizenship on the decennial census was in 1950.

From 1960 to 2000, a sample of the population was asked about citizenship. Since 2005, the Census Bureau has asked about citizenship in a separate annual survey sent to some people.

The 2010 census didn't include a citizenship question.

"A question asking about citizenship or country of birth (or both) has a long pedigree on the decennial census," Francisco wrote. "Indeed, 2010 was the first decennial census in 170 years in which such a question did not appear on any decennial census form."

The case is U.S. Department of Commerce v. State of New York, 18-966.

To contact the reporter on this story: Greg Stohr in Washington at gstohr@bloomberg.net

To contact the editors responsible for this story: Joe Sobczyk at jsobczyk@bloomberg.net, Laurie Asséo, Justin Blum

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