On Tuesday, Judge Jesse Furman of the U.S. District Court for the Southern District of New York enjoined Commerce Secretary Wilbur Ross from his previously announced proposal to include on the 2020 census a question about U.S. citizenship status. The decennial census has not included such a question since 1960.
After finding standing for the plaintiffs, Judge Furman found Secretary Ross’s resuscitation of the citizenship inquiry to be in violation of the Administrative Procedure Act (APA). The APA, the statutory cornerstone of modern administrative law, governs the regulation promulgation—or “rulemaking”—process for the various and sundry agencies of the federal government. Judge Furman’s voluminous 277-page opinion did not find against the Trump administration on any constitutional grounds.
Reports USA Today:
Judge Furman discounted Ross’s contention that he made his decision based on the Justice Department’s request. Instead, Furman said, Ross opted for the citizenship question for other reasons and then tried to conceal them.
“The court can—and, in light of all the evidence in the record, does—infer from the various ways in which Secretary Ross and his aides acted like people with something to hide that they did have something to hide,” Furman said.
The Trump administration will all but assuredly appeal to the U.S. Court of Appeals for the Second Circuit and, perhaps eventually, to the U.S. Supreme Court. Notably, the nine justices have already vexed the Trump administration earlier in the litigation process: In October, the Court rejected the administration’s emergency request to delay the trial’s commencement. At the time, Justices Clarence Thomas, Sam Alito, and Neil Gorsuch dissented from their six other colleagues.
The Trump administration is currently engaged in five additional lawsuits pertaining to the proposed census citizenship question. The Supreme Court has already agreed to hear oral argument in February on the specific question of what evidence is legally relevant in adjudicating the dispute.
Proponents of the census question’s inclusion generally cite the need for the federal government to have handy not merely broader demographic information pertaining to the full population, but also narrower information pertaining specifically to the subset of citizens. The Trump administration has argued that such information is necessary for its enforcement of Voting Rights Act protections against racial discrimination. Opponents of the census question’s inclusion generally claim that the question’s inclusion could have a “chilling effect” on deterring noncitizen participation and therefore undermine full census accuracy.
The census has concrete and tangible political ramifications. Most obviously, the census directly controls apportionment of seats in the U.S. House of Representatives. States with larger populations of noncitizens are thus, in theory, most likely to oppose the inclusion of the citizenship question. However, the full list of plaintiff states includes only states with Democratic state attorneys general and does not include immigrant-heavy states with Republican attorneys general, such as Texas.
Judge Furman’s opinion included his own caveat that he does not anticipate his order to be the final word on the subject. Instead, the final word will have to wait for the administration’s expected appeal to the Second Circuit and, perhaps, to the Supreme Court.