Does it Hurt to Ask? Citizenship Question Proposed for 2020 Census Faces Legal Challenges

By Rose Lapp

Associate Editor, Vol. 24

Congress is granted the power to carry out the census by Article 1, Section 2 of the Constitution, which reads: “The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct.”[1] The responsibility of administering the census lies with the Secretary of Commerce.

The census has not included a question about citizenship since 1950.[2] However, in March of 2018, Commerce Secretary Wilbur Ross announced that the 2020 Census would include the question “Is this person a citizen of the United States?”[3] This announcement was met with both great support and great outrage.

President Trump’s 2020 reelection campaign sent an email endorsing the proposed change, stating that “The President wants the 2020 United States Census to ask people whether they are citizens. In another era, this would be COMMON SENSE.”[4] Civil rights groups, however, banded together almost instantaneously to bring lawsuits in New York, California and elsewhere, aimed at obtaining an injunction to prevent the question’s inclusion.[5]

Groups urging for the question’s exclusion emphasize that the consequences of adding the question would be grave and far-reaching. The census is the official determinant of a state’s proportion of the national population. This number then determines how many seats in the House of Representatives will be allotted to that state, as well as what proportion of federal funds the state will receive for federal services such as education, transportation, and disaster relief.[6]

The Census Bureau, in the wake of Ross’s announcement, has warned that the question’s addition “could reduce voluntary responses to the 2020 head count by 5.8 percent, or about six million households.”[7] This substantial undercount would render the representation and apportionment of federal funds inappropriate to the actual number of people in each state who need representation and federal services. Strategic plans for emergency preparedness are also based on census data, which could lead to serious problems in the event of an undercount.[8]

Those who support the question’s inclusion, on the other hand, stress its importance for enforcement of the Voting Rights Act,[9] and emphasize the Secretary’s power and discretion over census administration.

Since Ross announced the question’s imminent inclusion, a number of trials have been initiated in federal courts across the country. In two of the cases that have gone to trial thus far, California v. Ross and New York v. Department of Commerce, the plaintiff’s central argument is that the question was not added in order to enable enforcement of the Voting Rights Act, but rather to undercount minority populations. The plaintiffs in both cases are bringing both statutory and Constitutional claims.[10]

The statutory claim is that the decision to add the citizenship question was arbitrary under the Administrative Procedures Act (APA). Under the APA, courts can invalidate agency actions found to be “arbitrary and capricious,”[11] meaning that they were unreasonable or insufficiently supported by the administrative record. The fact that the citizenship question was added without any testing, a departure from the Census Bureau’s typical practice of piloting any new question before its inclusion, makes the plaintiffs’ APA challenge stronger.[12] This case is also strengthened by the fact that the Census Bureau’s chief scientist warned Ross before the official decision was made that there were cheaper and more effective ways of enforcing the Voting Rights Act.[13] 

The government’s best argument, on the other hand, is that a ranking decision maker’s “mental processes are generally irrelevant to evaluating the legality of agency action.” By this reasoning, the explanation in the administrative record—that the question will enable more efficient enforcement of the Voting Rights Act—should be the only thing considered by the court when evaluating the action. Should the court find that justification legitimate, any separate discriminatory purpose would not be relevant.

While it is true that mental processes are rarely considered in judicial review of agency action, there are also constitutional claims to consider, one of which is based on the Fourteenth Amendment. According to a press release by the Lawyers’ Committee for Civil Rights Under Law and Public Counsel, a group litigating California v. Ross, the Fourteenth Amendment claim is “based on evidence that the addition of a citizenship question to the 2020 Census will depress response rates among Black, Latinx, and immigrant communities.”[14]

In 2000, in Morales v. Daley, a federal court in Texas considered a challenge to the publishing of racial data collected using the census.[15] In the decision, the court noted that “Plaintiffs argue that if such data is collected, it could only be used for discriminatory purposes. Plaintiffs have not alleged or shown, however, that the data is likely to be used to discriminate against them specifically.”[16] The Court upheld the decision to include those questions, finding that there was no discriminatory purpose, and therefore no breach of the Constitution.

That decision followed neatly from equal protection case law which indicates that the primary inquiry in discrimination claims should be into motive.

The question in the current case is different. Non-citizens are not a protected or suspect class for the purpose of equal protection analysis in the way that racial minorities are. While a discriminatory disparate impact on Black and Latinx communities is alleged, there is no explicit classification here along those categories, as there was in Morales. In a speech to the Heritage Foundation, Jeff Sessions addressed the question of intent, saying that “the Census question… is either legal or illegal. The words on the page don’t have a motive; they are either permitted or they are not.”[17]

However, the general importance of motive in equal protection claims, along with the fact that Morales shows us that intent has previously been considered in a discrimination claim based on the census, indicates that motive may also be the central issue in this case. Discriminatory intent is crucial to this kind of discrimination claim, and if the Court is not permitted to look at motive, the question of whether there was a Fourteenth Amendment violation becomes impossible to answer.

In mid-January Judge Furman, a federal judge in New York, held the addition of the question to be unlawful.[18] In his opinion, Furman wrote that the decision to add the citizenship question and the process leading up to it constitute “a veritable smorgasbord of classic, clear-cut [Administrative Procedure Act] violations.”[19] On the Fourteenth Amendment question, he found that the plaintiffs had not proved discriminatory intent on the part of the Secretary.[20] The Justice Department is expected to appeal.

As more federal judges rule on various challenges to the question, it seems likely that the Supreme Court will ultimately decide the question. It will be interesting to see whether the case’s scope remains confined to the APA challenge, or whether the Fourteenth Amendment claim will be decisive.

In October, the Supreme Court ruled that plaintiffs were not permitted to depose Ross, but did allow deposition of other officials, indicating that while Ross is awarded special protection according to his role as a member of the executive, some discovery is appropriate. If the Fourteenth Amendment claim ends up being how the question is ultimately decided, the Court will have to decide how to balance the necessity of looking at purpose when addressing a Fourteenth Amendment claim with the presumption of regularity afforded to members of the executive branch, and whether the statutory claim or the constitutional claims prove more persuasive.

In a recent court filing, the government claimed that the Secretary has “nearly unfettered discretion over the format and content of the census.”[21] The outcome of this case will help define the limits of that discretion, as well as to what extent the court can examine actions of members of the executive in light of discrimination claims.

[1] U.S. Const. art. 1, § 2.

[2] How the 2020 Census Citizenship Question Ended Up in Court, NPR (Nov. 4, 2018), https://www.npr.org/2018/11/04/661932989/how-the-2020-census-citizenship-question-ended-up-in-court.

[3] Id.

[4] Fred Barbash, Wilbur Ross: The Simple But Explosive Questions About the Census He’s Fighting Not to Answer, Wash. Post (Oct. 11, 2018),  https://www.washingtonpost.com/news/morning-mix/wp/2018/10/11/wilbur-ross-the-simple-but-explosive-questions-about-the-census-hes-fighting-not-to-answer/?utm_term=.8eb8b5f2d809.

[5] How the 2020 Census Citizenship Question Ended Up in Court, NPR (Nov. 4, 2018), https://www.npr.org/2018/11/04/661932989/how-the-2020-census-citizenship-question-ended-up-in-court.

[6]The Battle Over a Citizenship Question on the 2020 Census Heats Up, The Economist: Democracy in America (Nov. 14, 2018), https://www.economist.com/democracy-in-america/2018/11/14/the-battle-over-a-citizenship-question-on-the-2020-census-heats-up.

[7] Michael Wines, Can There Be a Citizenship Question on the 2020 Census? A Judge Will Soon Rule, N.Y. Times (Nov. 27, 2018), https://www.nytimes.com/2018/11/27/us/citizenship-question-census.html.

[8] Deanna Paul, The Supreme Court Agreed to Hear the Census Citizenship Case. Here’s Why That Matters Wash. Post: The Fix (Oct. 11, 2018), https://www.washingtonpost.com/politics/2018/11/20/supreme-court-agreed-hear-census-citizenship-case-heres-why-that-matters/?noredirect=on&utm_term=.8a6fe5819cd6

[9] Id.

[10] Louis J. Virelli III, The Census and the APA—Making Citizenship Arbitrary, ACSblog (Apr. 10, 2018), https://www.acslaw.org/acsblog/the-census-and-the-apa-making-citizenship-arbitrary/.

[11] See A.P.A. § 706

[12] Paul, supra note 9.

[13] Wines, supra note 7.

[14] Press Release, Lawyers’ Committee for Civil Rights Under Law, Opening Statements Begin Today in Federal Trial Challenging Trump Administration’s 2020 Census Citizenship Question, https://lawyerscommittee.org/press-release/opening-statements-begin-today-in-federal-trial-challenging-trump-administrations-2020-census-citizenship-question/.

[15] See Morales v. Daley, 116 F. Supp. 2d 801 (S.D. Tex. 2000).

[16] Id. at 811.

[17] Fred Barbash, Jeff Sessions Attacks Judges Thwarting Trump Agenda, Blasts Order for Wilbur Ross Deposition, Wash. Post: Morning Mix (Oct. 16, 2018), https://www.washingtonpost.com/news/morning-mix/wp/2018/10/16/jeff-sessions-attacks-judge-for-ordering-wilbur-ross-deposition-on-census-decision-as-supreme-court-mulls-question/?utm_term=.1373f59a72e1

[18] Corinne Ramey, Census Can’t Ask About Citizenship, Judge Rules, Wall St. J (Jan. 15, 2019), https://www.wsj.com/articles/federal-judge-rules-trump-administration-cant-ask-about-citizenship-on-census-11547564816.

[19] Id.

[20] Id.

[21] Chris Dolmetsch and Erik Larson, The 2024 Presidential Election May be Decided in a New York City Courtroom, Bloomberg: Politics (Nov. 2, 2018), https://www.bloomberg.com/news/articles/2018-11-02/are-you-a-citizen-question-on-trial-in-battle-over-voting-power.