Fight over census citizenship question hits Supreme Court

The battle over the Trump administration’s efforts to add a question on citizenship to the 2020 census is hitting the Supreme Court.

The justices will hear arguments on Tuesday over the administration adding the question, a controversial move that has sparked legal battles throughout the U.S. court system.

{mosads}The Commerce Department, which administers the census, is expected to argue that it has the authority to collect data on citizenship and that the question is needed to help with the Justice Department’s enforcement of the Voting Rights Act.

But opponents of the move, represented by the state of New York, will claim that adding the question will deter undocumented immigrants from filling out the survey, leading to an inaccurate count of the American population.

Two other parties — House Democrats and a collection of immigrant rights groups led by the American Civil Liberties Union — will also be given a chance to argue to the justices that the addition of the question is unconstitutional.

The Trump administration has repeatedly seen controversial policies shot down by federal judges but then supported by the Supreme Court. And with three lower court judges blocking the citizenship question from being added to the census, next week’s arguments will present the justices with one of their biggest cases of the term.

The justices will ultimately have to decide if the Commerce Department’s decision to add the question, announced last year, was done arbitrarily and without proper study of its impact. They will also consider if asking the question violates the Enumeration Clause of the Constitution, which states that Congress must conduct an “actual enumeration,” or count, of the population.

Court observers say the legal question will likely come down to whether Commerce Secretary Wilbur Ross had the actual authority to reinstate the citizenship question to the census roughly 70 years after it last appeared on the survey.

The administration has argued in briefs to the Supreme Court that Ross acted well within his rights to add the question, citing Congress’s decision to hand over administration of the census to the Commerce Department under the Census Act.

“The Constitution ‘vests Congress with virtually unlimited discretion in conducting’ the decennial census, and Congress in turn ‘has delegated its constitutional authority over the census’ to the Secretary,” one such filing reads.

Solicitor General Noel Francisco, who will argue the case on behalf of the administration, is also likely to assert that Ross’s decision was not arbitrary. He’s expected to cite a memo in which the Cabinet secretary asked whether a citizenship question was the best way to help the Department of Justice (DOJ) enforce the Voting Rights Act.

But critics of including the question disagree. They plan to say in court that the DOJ has been enforcing the Voting Rights Act for decades without data on citizenship and that the move will cause immigrants — particularly undocumented ones — to avoid the survey altogether.

“The notion that this is going to help enforce the Voting Rights Act is just ludicrous,” Dale Ho, the director of the ACLU’s Voting Rights Project, told The Hill.

Ho, one of several representatives who will argue before the court against adding the question, said that the high court’s conservative majority is skeptical about giving federal agencies too much authority to carry out their directives.

“I hope that justices of all ideological stripes will say, ‘That’s not how administrative agencies are supposed to act,’” Ho said.

The case has high stakes ahead of the 2020 census.

Census data is used across the federal government for a range of purposes, from allocating federal funding to states to determining how many representatives each state gets in the House.

The Trump administration’s announcement that it would include the question immediately set off a wave of legal challenges, including the lawsuit from a group of states led by New York that the justices will hear.

And the case, easily the most high-profile set argument before the Supreme Court this term, has also garnered roughly 50 amicus briefs, arguments submitted by interested parties, mostly against adding the question.

The question has also faced internal skepticism at the Commerce Department, with scientists there saying that asking about citizenship will cause biases within their data set from the 2020 census.

The census does not actually count every resident in the United States but rather collects data from a subset of the population that is then used to reach an estimated population count and determine other demographic data.

Court watchers also say Tuesday’s arguments will be a major test for the court’s conservative majority. Justice Brett Kavanaugh, who was sworn in last October after a contentious nomination fight in which he denied allegations of sexual misconduct, has shifted the court to the right.

But there is no guarantee that the conservative justices will side with the administration on the census question.

Joshua Geltzer, executive director of the Institute for Constitutional Advocacy and Protection at Georgetown Law, said both Kavanaugh and Chief Justice John Roberts frequently handled cases on federal agency authority when they served on the D.C. Circuit Court of Appeals.

Geltzer, whose center submitted a brief arguing against the citizenship question, said they could bring more scrutiny to the Commerce Department’s decision.

Ryan Owens, a professor of political science at the University of Wisconsin-Madison, said the justices will be wary of how the court looks as it takes up a politically charged case.

The court has already overruled lower courts on other contentious Trump policies, including the travel ban on several majority-Muslim countries and the ban on transgender people in the military.

“The justices will be very concerned about how far the court is perceived to be intruding into policy making and executive affairs,” Owens said of their decision in the census case.

The justices will also face a time crunch. The Commerce Department has indicated that it will need to start printing materials by June in order to get the census out in time.

That’s the same month that the Supreme Court generally delivers the biggest decisions that it hears in the term.

Owens said the court will likely take that time frame into account in order to make sure it doesn’t hamper the census.

“I don’t think they’ll rush it, but they’ll definitely be sensitive to the timing,” he said.