Good policy, bad policymaking, and the fight over the 2020 census
In April, the Supreme Court will review a decision by a federal judge in New York that bars the Commerce Department from adding a question about citizenship to the 2020 census. It is rare for the justices to take up a case before it’s been heard by an appeals court; they made an exception in this case because the government is facing a June deadline for printing the questionnaires that will be sent to every household next year.
You wouldn’t know it from the furor that greeted the Trump administration’s announcement that it planned to add the citizenship question, but the Census Bureau has been asking such a question for the better part of two centuries.
It was Thomas Jefferson who first recommended that the decennial census tally “the respective numbers of native citizens, citizens of foreign birth, and of aliens” living in the United States — a recommendation that was implemented in the 1820 census, which asked whether any persons in a household were “foreigners not naturalized.” Thereafter, a question about citizenship was on almost every census survey until 1950. From 1970 to 2000, the government used two different census questionnaires, one long and one short — and the citizenship question was always included on the long form. Since the turn of the century, the long form has been replaced by the American Community Survey, which is sent each year to about 3.5 million households. It too solicits the citizenship status of each resident.
In all those years, no one ever claimed that asking about citizenship is illegitimate. This time, liberals freaked out. Senator Dianne Feinstein of California described the proposed question as “an assault on the foundations of this country.” Former Attorney General Eric Holder said it “threatens American democracy.” Massachusetts Senator Ed Markey, applauding the district court decision to block the question, called it “a defeat for the forces that seek to suppress the voices of American voters.”
Even in our age of hyperpolarized politics, when any step taken by the administration immediately comes in for scathing denunciation, it seems bizarre to erupt over a census question asking about citizenship. Numerous countries, including Australia, Canada, Italy, and South Africa, do so routinely. So why the outrage over re-inserting such an unremarkable query into the decennial US census?
The substantive concern is that a citizenship question may deter some immigrants from returning their census questionnaires, presumably out of fear that the Trump administration might use the information to track down people in the country illegally. Since congressional apportionment is based on the total number of residents — not the total number of citizens — an undercount could theoretically reduce the number of seats in the House of Representatives to which states with large immigrant populations are entitled.
But the citizenship question doesn’t ask about legal status. Most noncitizens — students, diplomatic personnel, and more than 13 million green card holders — are in the United States lawfully, and would have no reason to flinch from the question. Conversely, any residents prone to shun the Census because they entered the country without permission aren’t likely to fill out a federal questionnaire anyway, whether it contains the word “citizen” or not.
Yet little of this may prove relevant when the Supreme Court weighs in this spring.
When it comes to anything involving immigration, time and again the administration’s bullheadedness seems to override its good judgment. In this case, the Commerce Department’s proposed addition to the census is wholly defensible as a matter of history and common practice. How the administration came to make that change is not so easy to defend.
The case before the high court is likely to turn on a relatively narrow question: Did the Trump administration — and Commerce Secretary Wilbur Ross specifically — comply with the Administrative Procedure Act, which governs how federal agencies must act in crafting government policy?
According to the administration, the impetus for restoring the citizenship question was a request from the Justice Department, which said it needed the information to better enforce the Voting Rights Act. But in a blistering decision, the trial judge ruled that Justice actually made that request at the behest of Ross, who had been “aggressively pressing” from the outset to get the questionnaire changed.
A majority of the Supreme Court may well accept the trial court’s finding that the citizenship question was added improperly — even though they might regard the question itself as legally and constitutionally unobjectionable. If so, that would mean no inquiry about citizenship on the 2020 census.
More importantly, it would administer a rebuke that presidents and their lieutenants don’t absorb nearly often enough: Good policy does not excuse dishonest policymaking. Federal officials are entrusted with wide discretion. Slapping them down when they abuse that discretion is essential to good government. Even more essential than counting citizens.