The Supreme Court Will Bypass Lower Courts to Review Controversial Census Question About Citizenship Status

After a circuit court ordered the removal of a citizenship question from the census, the Trump administration asked the Supreme Court to weigh in on the case. On Friday, the high court agreed.
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The Supreme Court has agreed to bypass lower appeals courts and review a case about a question on the 2020 census asking about citizenship status.

The Supreme Court has agreed to bypass lower appeals courts and review a case about a question on the 2020 census asking about citizenship status.

The United States Supreme Court agreed on Friday to fast track a review of a case concerning the Trump administration's plans to add a question to the 2020 census asking households to disclose whether their occupants are U.S. citizens.

The Department of Commerce—which oversees the Census Bureau—announced the decision to include the new question last spring, arguing that, in order to enforce the section of the Voting Rights Act that bans racial discrimination in voting, it needed a citizenship question to get a more accurate count of the voting-age population. Not since 1950 had the decennial survey asked respondents about their citizenship status, and the decision sparked immediate backlash.

Seventeen states and the District of Columbia filed a lawsuit against the Department of Commerce and Secretary of Commerce Wilbur Ross, arguing that a citizenship question would discourage participation of households with undocumented occupants, ultimately undercounting immigrant communities and violating a "constitutional requirement" that the government takes a fair and accurate count of the population.

In January, a federal judge in New York ruled against the Trump administration, writing that the inclusion of a citizenship question was "unlawful for a multitude of independent reasons," and ordering the Department of Commerce to remove the question from the next census. Ten days later, the federal government filed an appeal, and asked the Supreme Court to weigh in on the district court's decision, skipping over a potentially lengthy appeals process. Over at SCOTUSblog, Amy Howe explained the administration's reasoning:

The government emphasized that time is of the essence, because the census questionnaire has to be finalized by the end of June. It would be virtually impossible to go through the normal appeals process (even on an expedited basis) and still reach a final resolution by then, the government suggested. Going straight to the Supreme Court is, "as a practical matter," the government argued, the only way to ensure that the Supreme Court will be able to weigh in on whether the government can use the citizenship question on the 2020 census.

The Supreme Court rarely agrees to bypass lower courts, typically reserving the power for extreme situations, such as when President Harry Truman tried to seize control of steel companies during the Korean War, or during the Watergate investigation when President Richard Nixon refused to turn over tape recordings from the White House. But the Trump administration has made a habit of asking the court to circumvent the normal legal process in high-profile cases. Early last year, the Supreme Court rejected the Trump administration's request that the high court review a decision preventing the government from ending the Deferred Action for Childhood Arrivals program before the 9th Circuit Court of Appeals weighed in.

If the Supreme Court reverses the lower court's decision, critics say the citizenship question could lead to flawed population data. The Census Bureau itself once argued in a 1980 lawsuit that adding a question about immigration status on the survey would "severely jeopardize the overall accuracy of the population count."

A flawed population count could ultimately lead to skewed political representation, as the census is used to divvy up political power—in the form of seats in the House of Representatives—and federal funds to states.

States with large immigrant populations, such as California—where more than a quarter of households have non-citizen family members—stand to lose the most federal funding. "The citizenship question is the latest attempt by President Trump to stoke the fires of anti-immigrant hostility," California Attorney General Xavier Becerra said after the state filed suit in federal court last March. "Now, in one fell swoop, the U.S. Commerce Department has ignored its own protocols and years of preparation in a concerted effort to suppress a fair and accurate census count from our diverse communities. The administration's claim that it is simply seeking to protect voting rights is not only laughable, but contemptible."

Even if the Supreme Court upholds the lower court's ruling, the damage may already have been done among immigrant groups who were already fearful of the administration's aggressively anti-immigrant rhetoric, Vox's Dara Lind wrote in January. "Census officials were deeply concerned about immigrants' participation in the 2020 census even when they weren't asking about citizenship. Testers reported that respondents would walk out of their own homes rather than complete the in-person interview," Lind wrote, adding that, even though immigrant advocates and local governments are scaling up efforts to encourage participation, "news stories about what the administration might do tend to persist as rumors in immigrant communities even when the administration isn't actually doing it."

Beyond questions of political representation, reinstating a citizenship question would likely lead to more work and expense for the Census Bureau, which must send out staff to visit households that don't respond to the initial survey. "Lower response rates mean higher costs for the Census Bureau," Gary Gates, a demographer who formerly served on the Census Bureau's Scientific Advisory Committee, told Pacific Standard last March, "as it would require more non-response follow-up that constitutes one of the bigger expenses of any decennial census." In 2010, for example, census staff visited some 50 million households, costing the agency more than $2 billion.

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