Following oral arguments earlier this week, I’m deeply concerned that the Supreme Court appears willing to allow the Trump administration to weaponize the 2020 Census to determine where political and economic power in the United States should reside. Allowing the administration to demand citizenship information from every household as part of the decennial census for the first time in more than half a century would dramatically depress the count in areas with significant Latino and immigrant populations and would reposition political representation toward areas more likely to elect Republicans. Yet a 5-to-4 opinion along ideological lines in this case would further erode the public’s trust in the Supreme Court as an apolitical body.
Litigation over the inclusion of a citizenship question has raised significant constitutional concerns. It has also clearly shown that the Commerce Department violated the Administrative Procedure Act in failing to appropriately test its proposed change to the census questionnaire. Part of the purpose of the APA is to ensure that federal agencies do not inject ideological considerations into what are supposed to be fact-based determinations, precisely what Commerce Secretary Wilbur Ross has done.
Ross falsely claimed that he added the citizenship question “solely” at the request of the Justice Department so that it could more effectively enforce the Voting Rights Act. Given the total lack of VRA enforcement by the Trump administration, this is both untrue and rank hypocrisy. And the litigation process revealed that in 2017, Ross planned the addition of a citizenship question with his staff, as well as former White House official Stephen K. Bannon and then-Kansas Secretary of State Kris Kobach, two of President Trump’s radical, anti-immigrant political advisers, before broaching the subject with Justice Department leadership.