An ideologically divided Supreme Court on Tuesday seemed likely to back the Trump administration’s efforts to add a citizenship question to the 2020 census.
For roughly 80 minutes, the justices heard arguments in a challenge to Commerce Secretary Wilbur Ross’s decision to include a question about citizenship on the census form, which lower court judges have found to be a violation of federal law and the Constitution.
But the court’s five conservative justices appeared poised to allow the question to remain on the census and seemed sympathetic to the Trump administration’s argument that a citizenship question was needed to bolster enforcement of the Voting Rights Act.
By contrast, the arguments at times turned tense as the more liberal justices pressed Solicitor General Noel Francisco about concerns that including a citizenship question could depress responses from Hispanics and noncitizens in particular.
Critics of the move by Ross argued his decision violated the Administrative Procedure Act and the Constitution’s Enumeration Clause and warned that the question would cause a population to undercount that disproportionately harms communities with large immigrant populations.
Additionally, because census data is also used to allocate U.S. House seats and billions of dollars in federal aid, an undercount could also cause states to lose seats in Congress and cost them federal dollars, they warned.
On Tuesday, President Trump’s two nominees to the high court, Justices Neil Gorsuch and Brett Kavanaugh, at separate times noted that the United Nations has suggested countries include a citizenship question on a census and listed numerous nations that do already, including Australia, Canada, France, and Germany.
The two also stressed that a question about citizenship has in some form been asked of a segment of the population on all but one questionnaire since 1820.
“Does that international practice, that U.N. recommendation, that historical practice in the United States, affect how we should look at the inclusion of a citizenship question in this case?” he asked.
Kavanaugh also questioned why Congress hasn’t stepped in to “prohibit the asking of a citizenship question?” Congress, he added, gave the secretary of commerce “huge discretion” regarding the questions on the census.
Ross announced in March 2018 the upcoming census would include a citizenship question and said at the time that the Justice Department had requested the addition to ensure better enforcement of the Voting Rights Act.
Chief Justice John Roberts indicated he agreed the data collected by asking about citizenship could, indeed, lead to better enforcement of the Voting Rights Act, as the Trump administration said.
“The CVAP, Citizen Voting Age Population, is the critical element in voting rights enforcement, and this is getting citizen information,” he said.
Roberts also pointed out that there are numerous demographic questions already on the form, including sex, age, and homeownership, that do not have to do with where people live.
“The questions go quite beyond how many people there are,” Roberts said.
Ross’ decision to add a citizenship question to the census brought swift legal challenges by 18 states, major cities, and immigrant rights groups.
The Trump administration has suffered a string of defeats in the lower courts, where three federal judges blocked the Commerce Department from including the citizenship question on the census form.
U.S. District Judge Jesse Furman of New York ruled in January that Ross engaged in a “veritable smorgasbord of classic, clear-cut” violations of the Administrative Procedure Act. And two other judges, one in Maryland and one in California, said that Ross not only violated federal law, but also the Constitution.
Francisco was challenged on numerous instances by the liberal wing of the bench, including when he suggested that a citizenship question has been asked on the census for 200 years.
“I’m sorry,” Justice Sonia Sotomayor said. “It’s not been part of the survey, which is where he reinstated it, since 1950. And for 65 years, every secretary of the Department of Commerce, every statistician, including this secretary’s statistician, recommended against adding the question.”
Sotomayor also pushed back on a claim by Francisco that ordering the question be removed from the census could empower other groups around the country to boycott it in an effort to “knock off” other questions they objected to.
“Are you suggesting Hispanics are boycotting the census?” Sotomayor asked. “Are you suggesting they don’t have, whether it is rational or not, that they don’t have a legitimate fear?”
Sotomayor also highlighted studies conducted by the Census Bureau indicating that responses would be less accurate if the citizenship question was included.
How does the secretary “ignore the wealth of statistics, graphs, testimony, proof, control studies?” she asked.
“Enumeration is how many preside here, not how many are citizens,” Sotomayor said. “That’s what the census survey is supposed to figure out.”
Justice Elena Kagan took umbrage with Ross’ assertion that the Justice Department asked for the citizenship question to be included on the 2020 census, and instead said that the record indicated Ross approached the agency first.
“You can’t read this record without sensing that this need is a contrived one,” Kagan said.
A decision by the justices is expected by the end of June, just in time for the federal government to begin printing the questionnaire for the 2020 population count.
The case marked the first time the Supreme Court reviewed a major Trump administration policy since it upheld President Trump’s travel ban in June 2018.