Seizing on an opening provided by the Supreme Court, the Trump administration is scrambling to offer a new, legally defensible rationale for adding a citizenship question to the 2020 census. But it’s all a charade ordered up by President Trump, who is determined to enlist the decennial census in his crusade against people living in the country illegally. Lower federal courts across the country have properly refused to play along; the Supreme Court should belatedly do the same.
The background to this story should be familiar by now. Commerce Department Secretary Wilbur Ross announced in March 2018 that the government was amending the census form to ask about the citizenship status of every person in the country. He was sued almost immediately by a number of immigrant-heavy cities and states, which argued that the change would deter some immigrants — and especially those living here illegally — from responding to the census.
The resulting undercount would shift political power and resources away from communities with large immigrant populations, which tend to vote for Democrats. But Ross insisted that the administration’s motives were pure; the idea for the question, he said, came from the Justice Department, which supposedly sought the data to help it enforce the Voting Rights Act.
After lower federal courts blocked the citizenship question, the case made its way to a divided Supreme Court. The majority held that Ross’ explanation wasn’t credible, although the justices gave him the chance to offer one that was.
That should have been that. Administration officials had repeatedly said that they needed to start printing the census forms by July in order to fulfill their constitutional duty, and the court’s ruling left no time to keep the legal battle going.
Sadly, like an investor pouring good money after bad, President Trump doesn’t know when to stop fighting for the wrong thing, especially on issues involving immigration. Contradicting the initial response from administration lawyers, Trump ordered his subordinates to keep searching for a way to add the citizenship question. And on Monday, Atty. Gen. William Barr told reporters that the administration would reveal soon how, exactly, it planned to add the question while complying with the court’s ruling.
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Good luck with that. The problem for the administration is that it has been operating from a disingenuous premise from the start. It strains credulity to think that Trump would be eager to bring more Voting Rights lawsuits against cities and states that are suppressing minorities’ right to vote; after all, he appointed an election fraud commission that seemed to exist mainly to justify more vote suppression.
The evidence gathered in the lawsuits against Ross offer a much more believable explanation: The administration recognized that adding a citizenship question would deter non-citizens (or the citizens whose households they share) from responding to the census, leading to an undercount — especially in Latino communities, which tend to be dominated by Democrats. Trump’s uniquely hostile and intimidating rhetoric about unauthorized immigrants would only depress participation more.
But the administration can hardly afford to admit as much in court. It would mean confessing that the Commerce Department was trying not just to make the census less accurate — the Constitution requires a count of “every” person, citizen or not — but also to discriminate on the basis of ethnicity. (And remember, legal residents would be harmed by a census undercount at least as much as those without legal status would be, as their communities lose federal funding and representation in Congress.)
That leaves the administration with only one realistic option: to come up with a new lie about its rationale. While four of his conservative justices might not have a problem with that, Chief Justice John G. Roberts Jr. seems to recognize that letting administrations blatantly deceive the public about the purpose of their actions would give free rein to the basest impulses of the worst presidents.
This case shouldn’t have reached this point. Previous administrations recognized decades ago that it was a mistake to use the census to gather extra demographic information about the population because it prompted more people to toss the questionnaire in the trash. That’s what led the government to create the “short form” census that it mails to every household, confining questions like the one about citizenship to a longer survey that it sends separately to a small fraction of the population.
The constitutional purpose of the census is clear, and the administration should fulfill it. The administration’s purpose in seeking to add the citizenship question is clear too, no matter what it tells the courts. They should not be fooled.