The Daily - Why the Supreme Court Is Ruling on the Census

Episode Date: April 29, 2019

Before the 2020 census begins in the United States, a case has been fast-tracked to the nation’s highest court about who is counted and why. It has become the biggest case in front of the Supreme Court this session. Guest: Adam Liptak, who covers the Supreme Court for The New York Times. For more information on today’s episode, visit nytimes.com/thedaily. Background reading: The Supreme Court’s conservative majority appeared ready to allow the Trump administration to add a question about citizenship status to the 2020 census. A decision is expected in June. Political maps based only on the citizen population could tilt in favor of Republicans.

From The New York Times, I'm Michael Barbaro. This is The Daily. Today, ahead of the 2020 census, a case has been fast-tracked to the highest court about who we count and why. Adam Lipton on the biggest case in front of the Supreme Court this session. It's Monday, April 29th.

Thank you, Chairman Culberson, ranking members Serrano, and members of the House Appropriations Subcommittee. So on March 20th of 2018... Thank you for this opportunity to discuss President Trump's fiscal year 2019 budget request for the U.S. There is, as there is almost every day Congress is in session, an extremely routine and boring budget hearing. Secretary Ross, welcome. We're really honored to have you here today. And today, they have the Commerce Secretary, Wilbur Ross, come and testify. I wanted to ask a question about the traditional census undercount of young children. They ask him about the census. The Commerce Department's in charge of the census,

and they're preparing for the 2020 census. Well, it relates to the overall issue of how do we encourage count. And at one point, a Democratic congressman asked a question about an addition to the 2020 census form sent to every household, which will ask everyone about whether they're citizens of the United States. Secretary Ross, I know from your testimony that you take the administration of the census very seriously, and part of that duty is to administer it in a non-political, non-partisan way.

Is that correct? Yes, sir. Should political parties and campaign politics ever factor into what is asked of every household in the country on the census. No political party has asked us to do anything on the census. We have had a request, as everyone is aware, from the Department of Justice to add a citizenship question to the 2020 census. And Wilbur Ross responds categorically that he was responding solely to the Justice Department's request.

Has the president or anyone in the White House discussed with you or anyone on your team about adding this citizenship question? I'm not aware of any such. Thank you. Judge Carter. Thank you, Mr. Chairman. So that hearing ends.

Like most budget hearings, nobody pays attention. And nobody thought at the time that that exchange with Wilbur Ross and whether he was telling the truth would turn out to be central to a case that would go to the Supreme Court. Adam, how does the census end up in a case before the Supreme Court? does the census end up in a case before the Supreme Court? So the census is required by the Constitution. It's in the sixth sentence of the Constitution. It's the first thing in the Constitution that actually directs the federal government to do something directly.

And what it tells the federal government to do is every 10 years you have to count up everybody in the nation. In 80 million mailboxes across the USA, the censuses are coming to help us plan the way. Actually, the census is the largest peacetime mobilization in America. Aside from sending troops overseas, this is when we put the most people into the field to do something. That's another way of saying it's very important. It's the very cornerstone and foundation of our political system. Help your community get equal government representation. Help show where funds are needed for jobs, schools... It's how we allocate political power.

It's how we allocate congressional seats. It's how we draw voting districts. And it's used to allocate hundreds of billions of dollars of federal funds. You can count on me. And the way we allocate those up is by counting the number of people in the state, everybody in the state, citizens or not. Answer the census, we're counting on you. Do we know why it was written that way?

Why it doesn't specify citizens? You know, the question really ought to be why should it specify citizens? What the framers were interested in was getting a count of everyone in a nation that didn't even really exist yet. And it wasn't germane to any question immediately on their minds. The question the framers wanted to know is how many people live in the United States, where do they live, and then and now that is job one of the census. Nobody disputes that that constitutional phrase, actual enumeration, is the main and most important thing the census needs to do. So I filled out a census back in 2010 was probably the last time.

And it's not just asking me to be counted in terms of my name, my address. It's also asking about race, sex, income. How is all of that demographic information related to those goals? It's not related to those goals, but it's been something that over time the Census Bureau has also done, and done well. And in various ways, in addition to counting people, it also gathers valuable information used for a ton of stuff, including many of the categories you listed. But it tries not to do that if it's going to do harm to job one. That is, it tries not to ask questions if it's going to do harm to the fundamental purpose of counting everyone.

So what about the question of citizenship? How has the census approached that? So from 1820 to 1950, various kinds of citizenship questions were not uncommon. Come the 1950s, there's a revolution in social science and statistics and sampling. So they stop asking questions about citizenship because they think it is one of those questions that's going to do harm to the purpose of the census. And what's the harm exactly? The harm is that people stop responding or they respond falsely. So you're simultaneously getting less participation and substantially less participation, and also a bunch of false positives because people who are fearful might say they're citizens when they're not.

So the Census Bureau comes to think we're going to keep the main census form pure and focused on the things we really need to know. We really need to know. So despite any efforts to get this citizenship question back on the census after the 1950s, when the social science begins to say it's a bad idea, it has remained off the census. Right. The Census Bureau's longstanding position is that it's a terrible idea to put the citizenship question onto the main census form. Overnight, the Trump administration announced a move that could impact the balance of power for years to come. So, Adam, how do we get to today when the United States government is requesting that that question return to the census?

States government is requesting that that question return to the census. Well, President Trump, of course, ran on an assertive platform of addressing unlawful immigration. And he puts Wilbur Ross into the job of Commerce Secretary. Secretary Wilbur Ross announcing the decision following a request by the Justice Department. And Wilbur Ross announces in March of 2018 that he's going to add the citizenship question. A new battle is brewing over the 2020 U.S. Census. California suing the Trump administration over the decision to add that controversial question about citizenship to the 2020 Census. At least 12 states are expected to follow California's lead and sue. Wilbur Ross is promptly sued by 18 states and also any number of civil liberties and immigration groups. Given the way that this administration has attacked immigrants, you can understand why immigrant families would be afraid to fill out the census questionnaire.

So there's a lot of skepticism that it's got an anti-immigration feel to it, but he says no. Well, the request was made by the Department of Justice quite a few months ago. Justice Department feels they need it so that they can enforce Section 2 of the Voting Rights Act, which protects minority voters. That's the genesis of the request for adding this question back in. So Wilbur Ross is saying he needs this citizenship data to protect America's voting rights. And the voting rights of minorities in particular. Got it.

It's also true that since the Voting Rights Act was enacted in 1965, no administration, including administrations generally thought to be much more committed to the Voting Rights Act, ever thought they needed this data. So there's reason to question it, and the people who actually work in this area say that they can't think of a case where they needed more citizenship data that they had. And of course, they say also that this way of getting citizenship data is unreliable because you will have as many as a third of the people giving false answers. Well, today, a trial begins in federal court in San Francisco

over the Trump administration's decision to add a citizenship question to the 2020 U.S. census. And these lawsuits progress. And as part of the lawsuits, the plaintiffs start to get access to information and documents. And they start taking testimony from people. And it turns out that there's a whole different backstory to what happened. We'll be right back. Welcome back. U.S. Commerce Secretary Wilbur Ross is being accused of misleading members of Congress. Wilbur Ross told Congress earlier this year he had nothing to do with adding a new question about citizenship to the U.S. Census survey.

Now this new Justice Department filing suggests otherwise. Emails and documents have surfaced that indicate that it was actually Wilbur Ross who was the person that wanted to add this immigration question to the 2020 census. What actually happened was not that the Justice Department woke up one day and asked Wilbur Ross to do this, but rather that almost from the day Wilbur Ross took office, he was hunting around for a way to get this question onto the forum. And most importantly, he said he didn't discuss this question with the White House. He meets with Steve Bannon. Steve Bannon put Wilbur Ross in touch with Chris Kobach, the former secretary of state of Kansas,

the leading architect of laws restricting voting and immigration in the U.S., to add this question to the census. And it was Kobach. So he is consulting with people who are strongly opposed to immigration and very much on board for adding this citizenship question. And what happens after he meets with them? He now needs a reason. He knows what he wants to do. He wants to add the question, but he needs a reason. He needs a legal justification. He doesn't have one. So he goes to the Department of Justice and says, can you give me a reason? They say, well, you know, we don't need that information. We're good. He goes to the Department of Homeland Security. Same

answer. He goes back to DOJ. Same answer. He goes to the attorney general, and the attorney general, Jeff Sessions, agrees to play ball. And lo and behold, a rationale emerges, this rationale that you don't really associate too much with the Trump administration, that they would like to enforce the Voting Rights Act more vigorously, and that's why they need this information. And it emerges that Wilbur Ross has kept his own staff in the dark. They, operating in good faith on hearing that the Justice Department wants to add this question, go to their boss and say, boss, let's not do this. Here are all the reasons we shouldn't do it. This is going to be bad. This is going to decrease participation by 6.5 million people. And they don't know and are not told that this whole enterprise has been

pre-cooked. And when the chief scientist of the Census Bureau is asked how that made him feel, the fact that he was operating in good faith, he was giving his best scientific judgment to his boss who had already decided to go a different way, he choked up and visibly held back tears as the trial judge described it. So this story revealed from this testimony and these documents is pretty much the exact opposite of what Wilbur Ross has told Congress that Department of Justice came to him. In fact, he went to the Department of Justice in search of a legal rationale. If you go back to that boring hearing as a categorical statement that he was responding solely

to a request from the Justice Department, that does not look truthful. Well, as far as you can tell, Adam, what specific goals would adding the citizenship question accomplish for Wilbur Ross and for the Trump administration? So that's a real mystery

at the heart of all this. The judges who have looked at this all decided that Wilbur Ross was not telling the truth, but they all said, we don't know what his real reason was. I have three theories. One is one expressed by President Trump, and it's short and sweet.

In a tweet, he says, the American people deserve to know who is in this country. That suggests that we want to know where unauthorized immigrants are so that we can track them down and deport them. Theory number two is that Wilbur Ross actually welcomes the drop in participation. Many people in California and Texas and Florida and New York wouldn't participate. Non-participation means you have fewer people being counted, meaning you will have less representation in Congress, and not

incidentally in the Electoral College. And if Wilbur Ross's goal is to suppress participation disproportionately because it'll mostly affect blue states, that might be a political goal he would embrace. Got it. And then finally, and this is actually my theory, it's a tad complicated, but bear with me. There is a move afoot in some parts of the country to draw voting districts based only on eligible voters, not everybody. And so you have one person, one vote, and that means you need voting districts of equal size. But the Supreme Court has never definitively said about who do you count to make them of equal size. Currently, everywhere in the country, we count everybody. So in blue states, in urban centers with lots of kids and unauthorized immigrants and prisoners, you get a lot of people

not eligible to vote but are counted for voting districts. I think this may well be part of a long-term strategy to move to a different kind of counting, to only count eligible voters for drawing voting districts. That would be very good for Republicans. But to do that, you need to be able to say that you have good citizenship data. So in any of these scenarios, one, two, or three that you've outlined, the Republican Party and the Trump administration get something that they want when it comes to their political power and their efforts to more aggressively enforce immigration law. It's kind of a win-win. That's right. Or maybe they just want to enforce the Voting Rights Act.

That's right. Or maybe they just want to enforce the Voting Rights Act. So how does this play out in the courts? Three different judges take a close look at it. A third federal judge has blocked the Trump administration from adding a citizenship question to the 2020 census. Today's ruling by a U.S. district in Maryland says that the addition of a citizenship question is arbitrary and capricious. And the administration has bad luck in the lower courts who uniformly forbid it from adding this question to the census. But they're facing a deadline here. The census forms need to be printed this June, which means if the Supreme Court's going to hear the case, there's no time for the ordinary procedure, which would be for appeals courts first to consider these complicated and important legal questions. Instead, the administration asks the Supreme Court to let it leapfrog and go straight to the Supreme Court.

So the Supreme Court fast tracks the case and agrees to hear it in April. Court. So the Supreme Court fast tracks the case and agrees to hear it in April. We'll hear argument this morning in case 18966, the Department of Commerce versus New York. General Francisco. And what happens last week when this case goes before the court? Mr. Chief Justice, and may it please the court. So I think this is easily the most important case of the term. The court, which usually hears hour-long arguments, grants 80 minutes. Forty of them go to the administration's lawyer, the Solicitor General Noel Francisco, who basically makes the point, listen.

Because at the end of the day, if you add any particular question onto the census, you're always trading off information and accuracy. Every time you add a question, you may have some drop-off in participation. It's a cost-benefit analysis. And that underscores why we don't think this is really subject to judicial review. And that analysis should be done by Wilbur Ross, not by the Supreme Court. And he faces an intense barrage of questions, particularly from Justice Sonia Sotomayor, who is completely unconvinced that there's any decent rationale supporting adding the question and that it would do a lot of harm. There is no doubt that people will respond less because of the census. That has been proven in study after study. One census surveyor described an incident where he walked into a home, started asking citizenship,

and the person stopped and left his home, leaving the census surveyor sitting there. his home, leaving the census surveyor sitting there. And Adam, how does intention, Wilbur Ross's and the Trump administration's, factor into these questions and arguments? So the Solicitor General basically says it's none of your business. Hmm. That he's allowed to come into office with intuitions about what he might want to do. I think it is quite common for cabinet secretaries to come into office with ideas and inclinations to discuss with their staff and discuss with their colleagues whether there is a legal

and policy basis for that inclination. That he has presented a perfectly good rationale. I think the secretary fully acknowledged that there was an upside to the request, that having citizenship data would help improve Voting Rights Act enforcement. And everything operated just exactly as it should have. And what do the more liberal-leaning justices say to that? Do they accept that argument that intention doesn't matter? No, they say that, sure, executive branch officials have discretion,

but they need to give a reasoned explanation. They can't be arbitrary and capricious. They can't be making stuff up. They can't be relying on pretexts. And Justice Kagan says... It did really seem like the secretary was shopping for a need. Goes to the Justice Department. Justice Department says we don't need anything. Goes to DHS. DHS says they don't need anything. Goes back to the Justice Department. She says you can't read this record without sensing that this need, referring to the Voting Rights Act,

is a contrived one. And that runs afoul of principles of administrative law, which in some settings the court cares a lot about. And what about the conservative judges on the court? Well, the four of them who talk, which is to say we're going to take out Justice Clarence Thomas, seem prepared to say this is an area in which Wilbur Ross has substantial discretion. How to fill out the form, what to put on the form. So how are we to think? They're not going to second guess him. They seem perfectly content with asking a citizenship question.

Justice Gorsuch says... Yes, it's not like this question, or anybody in the room is suggesting the question's improper to ask. It's in some way, shape, or form. And he says also, and what do we do as well with the evidence of practice around the world? And virtually every English-speaking country, and a great many others besides,

ask this question in their censuses. And Judge Brett Kavanaugh, the second Trump appointee, also discusses international trends. The United Nations recommends that countries ask a citizenship question on the census. And a number of other countries do it. Spain, Germany, Canada, Australia, Ireland, Mexico ask a citizenship question. And what's lurking in the background in a way that nobody quite says is, yeah, but is there in those countries the white hot question of immigration that we're going through in the United States in 2019? Do you take account of the social context of asking the question today? What do you mean? I mean, is there a hotter political issue in the United States

today than immigration? At the borders, in asylum, and injecting the question in this contemporary political and social context is a different kind of move than doing the same thing in 1850. So what happens in this case, Adam? How do you expect the Supreme Court to rule? I expect probably on the last day of the term, in the last week of June, for the Supreme Court to do the predictable thing, which is by a five to four vote with all the Republican appointees in the majority and all the Democratic appointees in dissent for the court to endorse the addition of the citizenship question to the census. And that will not be a particularly satisfying outcome for people who would hope the court could find a way to look less political.

And practically speaking, what would that mean? Well, it means the question gets added to the form. It means that civil rights groups and immigrants groups will do a tremendous amount of outreach and try to persuade people to please fill out the form. Please, it's important. It matters. And to a large extent, they're going to fail.

Adam, thank you very much. Thank you, Michael. Thank you. And together we will see each other through. Answer the census, we're counting on you. Answer the census, we're counting on you. Here's what else you need to know today. I want to start off our brief press conference here by expressing our condolences to all the people that injured in the senseless act of tragedy that visited Poway this afternoon. Officials are calling a deadly shooting at a California synagogue a hate crime, motivated by anti-Semitism and inspired by previous massacres at houses of worship. At about 11.23 this morning, a white male adult entered the Shabbat temple.

The suspected shooter, a 19-year-old from San Diego, screamed that Jews were ruining the world as he stormed the synagogue and posted a hate-filled manifesto that embraced white nationalism. This individual was with an AR-type assault weapon and opened fire on the people inside the synagogue. During the shooting, four individuals were wounded and transported to Palomar Hospital. Sadly, one of the individuals succumbed to their wounds. In the manifesto, the shooter claimed to have been influenced by the recent shootings at two mosques in New Zealand

and a synagogue in Pittsburgh. And on Sunday, Attorney General William Barr clashed with House Democrats over his upcoming testimony about the Mueller report, with Barr threatening to skip the hearing and Democrats threatening to subpoena him. The dispute revolves around the proposed format of the hearing before the House Judiciary Committee. The committee's chairman, Jerry Nadler of New York, wants to allow the committee's staff lawyers, Committee's chairman, Jerry Nadler of New York,

wants to allow the committee's staff lawyers, in addition to House members, to question Barr, something that Barr opposes. The standoff over who can question Barr could delay or derail the hearing, which is now scheduled for Thursday. That's it for The Daily. I'm Michael Bavaro. See you tomorrow.