WASHINGTON — In a setback for the Trump administration, the Supreme Court on Thursday sent back to a lower court a case on whether the census should contain a citizenship question, leaving in doubt whether the question would be on the 2020 census.
Chief Justice John G. Roberts Jr., writing for the majority, said the explanation offered by the Trump administration for adding the question — asking whether a person is a citizen — was inadequate. But he left open the possibility that it could provide an adequate answer.
“The reasoned explanation requirement of administrative law, after all, is meant to ensure that agencies offer genuine justifications for important decisions, reasons that can be scrutinized by courts and the interested public,” the chief justice wrote. “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.”
The practical impact of the decision was not immediately clear. While the question is barred for now, it is at least possible that the administration will be able to offer adequate justifications for it. But time is short, as the census forms must be printed shortly. The decision was fractured, but the key passage in the chief justice’s majority opinion was joined only by the court’s four-member liberal wing.
[Here’s what you need to know about the debate over adding a citizenship question to the census.]
Government experts predicted that asking the question would cause many immigrants to refuse to participate in the census, leading to an undercount of about 6.5 million people. That could reduce Democratic representation when congressional districts are allocated in 2021 and affect how hundreds of billions of dollars in federal spending are distributed.
The administration’s stated reason for adding the question — to help enforce the Voting Rights Act of 1965 to protect minority voters — has been questioned by three federal judges. Recently discovered evidence from the computer files of a Republican strategist undermined the administration’s rationale and suggested that the true reason for the question was to help “Republicans and non-Hispanic whites.”
The case — United States Department of Commerce v. New York, No. 18-966 — has its roots in the text of the Constitution, which requires an “actual enumeration” every 10 years, with the House to be apportioned based on “the whole number of persons in each state.”
But the government has long used the census to gather information beyond raw population data. In 2020, for instance, the short form that goes to every household will include questions about sex, age, race and Hispanic or Latino origin. Some of those questions may discourage participation, too.
Since 1950, the government has not included a question about citizenship in the forms sent to each household.
The census, the nation’s largest peacetime mobilization, is overseen by the Commerce Department. In March 2018, Wilbur Ross, the commerce secretary, announced that he planned to add a citizenship question.
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He acknowledged that it could have “some impact on responses” but said the information sought was “of greater importance than any adverse effect that may result from people violating their legal duty to respond.”
In sworn testimony before Congress, Mr. Ross said he had decided to add the question “solely” in response to a Justice Department request in December 2017 for data to help it enforce the Voting Rights Act. Three federal trial judges have ruled that the evidence in the record demonstrated that Mr. Ross was not being truthful.
He had already decided to add the question, the judges found, and he pressured the Justice Department to supply a rationale.
Documents disclosed in the case showed that Mr. Ross had discussed the citizenship issue early in his tenure with Stephen K. Bannon, the former White House chief strategist and an architect of the Trump administration’s tough immigration policies, and that Mr. Ross had met at Mr. Bannon’s direction with Kris Kobach, the former Kansas secretary of state and an opponent of unlawful immigration.
After the justices heard arguments in April, more evidence emerged from the computer files of Thomas Hofeller, a Republican strategist. It suggested that the Trump administration sought to collect citizenship information so that states could draw voting districts by counting only eligible voters rather than all residents, as is the current practice. That would, Mr. Hofeller wrote, “be advantageous to Republicans and non-Hispanic whites.”
Whether such districts are permitted by the Constitution is an open question, as Justice Ruth Bader Ginsburg noted in her 2016 majority opinion in Evenwel v. Abbott.
“We need not and do not resolve whether, as Texas now argues, states may draw districts to equalize voter-eligible population rather than total population,” Justice Ginsburg wrote.
In a supporting brief in that case, former directors of the Census Bureau noted that there were practical obstacles to counting only eligible voters given the available data. But they added that “directly inquiring about citizenship status as part of the short-form census is not a solution to the data problem.”
“Doing so,” they wrote, “would likely exacerbate privacy concerns and lead to inaccurate responses from noncitizens worried about a government record of their immigration status.”
The administration has said that census forms must be printed by June, but the groups said the real deadline is October, leaving time for further legal proceedings.
Even as the justices deliberated, trial judges held hearings to consider what to do about the new evidence. Administration lawyers said the challengers were pressing a conspiracy theory based on “smoke and mirrors,” and they urged the Supreme Court to render a prompt decision.
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