On February 19, 2019, the United States Supreme Court is expected to hear a case regarding a question on the anticipated 2020 census. As most are aware, the census is taken every ten years and is mandated by the US Constitution. The original purpose was to obtain an accurate count of the population in order to apportion seats in Congress. Later, under the doctrine of “one man one vote,” the results of the Census also are used to determine state and federal legislative district boundaries so that they capture a roughly equal population. Also, over the years as the federal bureaucracy and the number of programs have blossomed, Census data is also used to allocate federal funds for such programs as Section 8 housing, first responder funding, transportation funding and the School Lunch Program, among others.
The Census is administered by the US Department of Commerce, currently headed by Wilbur Ross. Stating that the Justice Department requested an inclusion of a question about citizenship on the Census in order to accurately enforce the Voter Rights Act of 1965, it was proposed that just such a question appear on the Census. This created a huge backlash from states- most of them blue, Democratic-controlled ones- and immigrant rights groups. They argue that inclusion of a question about citizenship on the Census forms will cause many people not to respond. That, in turn, would lead to an undercount of the population which could cost states billions in federal funds and potentially a loss of political clout in Congress. One estimate states that a potential 24 million people would elect not to answer the survey out of fear of revealing their immigrant status.
At issue is not the constitutionality of the question itself, but the process by which it was to be included. From 1820 to 1950, a similar question appeared on the census and it was never challenged. Hence, if was constitutional then, it is constitutional now. Second, the Census Bureau does not go to sleep only to emerge from its slumber every ten years. They annually conduct something called the American Community Survey. Although not as extensive as the census itself, it is relatively accurate to determine population trends and migration of the population. And guess what? It asks a question about citizenship.
The main fear of the Left- that they will lose political clout- is unfounded in the grossest sense. The Constitution mandates that the population be counted every ten years. It says nothing about citizenship. This would be a problem if the Trump administration were asking that only legal citizens be counted in the Census, but that is not the case. Although the evidence is sketchy here, let’s assume the Justice Department did want this question included not to track down illegal immigrants, but to (1) get a handle on the illegal population and (2) use this information to determine the degree of voter fraud. One should not see a problem with such a question if (1) there is a legitimate desire for immigration reform and (2) there is no evidence of voter fraud. In other words, what does the Left have to fear?
Instead, they argue that the question is being included for partisan purposes. Again, this argument is silly. If it was being included for partisan purposes, then every Presidential administration from 1820 to 1950 likewise included it for partisan purposes. Also, every President to occupy the White House while the Census Bureau conducted the American Community Survey is guilty of partisan use of the question. Of course, there was no illegal immigrant population problem from 1820 to 1950.
Hence, the Left’s arguments and those of immigrant rights groups are unfounded. Instead, their “evidence” is akin to the shady science of climate change based on computer models. That is how they arrive at the number of 24 million potential undercounts because people will fear responding to the questionnaire.
So instead this case is about the process. There is an ongoing trial in a District Court in New York over this question of the process. The Supreme Court has already delivered favorable decisions to both sides in that case. They determined that the Court could not depose Commerce Secretary Ross, but could question other officials outside court. They also ruled that the trial could continue. Now that the high court has taken the case, the administration has requested that the District Court delay any decision until the Supreme Court rules.
At this point, things get tricky. Should the District Court comply with the administration’s request, then they would have to wait for the Supreme Court decision. Oral argument is scheduled for February 19, 2019. The usual wait time between oral argument and announcement of a decision could be anywhere from two to four months with the more controversial cases usually being announced in June. Of course, there are exceptions to the rule especially when time is of the essence. In 2000, the case of Bush vs. Gore is one such example. And that may be the case here because the law dictates that the Census forms be completed and sent to the printer by June, 2019.
According to many within the Census Bureau, getting the population to cooperate and complete the form is their biggest challenge under the best of circumstances. Inclusion of a new question on the census form is, according to these experts, a lengthy process that includes testing it before inclusion on similar surveys. Again, these warnings from experts are hollow since (1) the question had been used in previous years and is thus not a “new” question, and (2) they do use the question on another survey so they have statistical evidence on its effect on cooperation and participation by those who receive the questionnaire (the annual American Community Survey).
This is classic case of the Left’s deft use of “lawfare.” Through delay, they realize that the injunction against inclusion of the question pending a trial outcome gains greater importance as that June 2019 deadline looms. The Supreme Court can call their bluff, rule in favor of the administration in a fairly quick manner, and lift the injunction before June 2019. This writer will certainly be watching.