The NPR Politics Podcast - Supreme Court Appears To Lean Toward Allowing Census Citizenship Question

Episode Date: April 23, 2019

The Supreme Court is weighing whether the Trump administration can include a citizenship question on the 2020 census. This episode: White House correspondent Tamara Keith, political editor Domenico Montanaro and national correspondent Hansi Lo Wang. Email the show at [e-mail]. Find and support your local public radio station at npr.org/stations.Learn more about sponsor message choices: podcastchoices.com/adchoicesNPR Privacy Policy

Hey guys, it's Tamara Keith, host of the NPR Politics Podcast. The Pod Squad is heading to Philadelphia this Friday, April 26th, for a special live taping of the podcast. It's all about the road to 2020. You can find tickets on nprpresents.org, and we hope to see you there. Hi, my name is Jose Linares, and I'm on my way to During Middle School in Agawam, Massachusetts, where I coach chess. This podcast was recorded at 3.35 p.m. on Tuesday, the 23rd of April. Things may have changed by the time you made your next move. Okay, check out the show. Oh, I see what he did there.

Oh my gosh, the puns. I like that. The puns, the chess puns. Hey there, it's the NPR Politics Podcast. I'm Tamara Keith. I cover the White House. I'm Domenico Montanaro, political editor. And I'm Hansi Luwong, national correspondent.

And Hansi, welcome back to the pod. It's been a long time. Thank you, Tam. And you are back to talk about the same thing that we talked to you about before, which is the U.S. census. Today, the Supreme Court heard oral arguments in a case that involves the census. But before we get into exactly what the arguments were about, let's go back to the very beginning. What is the census, Hansi? It's a headcount. It's a headcount of every person living in the country. And it's done every 10 years. And it goes literally back to the founding of our country because this is in the Constitution. Article 1, Section 2 calls for, here we go, a wonky term, actual enumeration, because it's about the whole, says, quote, the whole number of persons in each state.

This is not just about citizens in the country. They want to get all of the people in the country. How many of them actually are there? So like every 10 years you get a form or someone comes to your house and they want you to answer a bunch of questions. Right. What is sort of the standard census question? The most important question is how many people are living in a household. And then it goes, you know, wants to know the age, the birth date, the race and ethnicity specifically is someone of Hispanic or Latino origin. Those are really important questions.

Per the Constitution, this census data is used to determine how many congressional seats each state gets based on its population from the census. And that also determines how many electoral college votes each state gets. And this information is also used to guide an estimated almost $900 billion a year in federal funding for schools, for roads, for other public services in local communities around the country. So this brings us to the case that was before the court today. The Trump administration in this coming census wants to ask every household whether the people living there are citizens of the United States. And this is not a question that has been asked in the basic census in a long time, but the Trump administration wants to bring it back and there's this big court fight about it. Yeah, it hasn't been on the census since 1950, as I understand it, right? Census history is very complicated, trust me. After 1950, beginning in 1970, the Census Bureau

did ask about citizenship status of a sample of households, not every household like it does for the census. And so it was known as the long form question that only some households got around the country. And now that question is on a sample survey known as the American Community Survey. OK, so the Trump administration wants that question on the 2020 census. Hansi, why is that? And why is this so controversial? Well, the Trump administration says it wants it to use those responses to better enforce part of the Voting Rights Act. And the Voting Rights Act, section two of it has been enforced using citizenship data. Ever since it's been enacted, the government has

used citizenship data from that long form, that sample of census participants, and now the American Community Survey. But the Trump administration says that's not adequate. They want it from every household from the 2020 census. And that is a major concern for the Census Bureau, for statisticians. A citizenship question has long been known to be a very sensitive question. And especially now in this current political climate of increased immigration enforcement, growing anti-immigrant rhetoric, there is a lot of concern. And there is also research from the Census Bureau that if you were to ask this question on the 2020 census, you're likely going to discourage a lot of households with non-citizens, and those households do include some citizens. So experts within the government say something like six and a half million fewer people could

actually wind up answering this question, which would mean a severe undercount of the number of people in the country. So part of what's controversial here, though, Tam, is the politics. I mean, where this started and how the question actually got onto the census, given the president's hard line on immigration and the people around him. It started with some of those folks within the White House.ist Steve Bannon, who connected Ross with Chris Kobach, former Kansas Secretary of State and former Vice Chair of President Trump's now defunct Voter Fraud Commission. And Chris Kobach suggested to Wilbur Ross to ask a citizenship question, because he wrote in an email to Ross that he was concerned about a problem, he called it, that it's a problem, Kobach believes, that undocumented immigrants are included in the apportionment count and the census numbers used to determine how many congressional

seats each state gets. Right. And a lot of that came out in what depositions from the from in the lower courts. These actually came out through emails and memos that the Trump administration was required to release as part of these lawsuits. So the origin of the Trump administration trying to put this question on the census is the subject, at least partially, of several lower court rulings. Is that right, Hansi? Yes. Three federal judges in New York and California and now Maryland have all ruled that Congress Secretary Wilbur Ross, his stated rationale for adding this question,

the Voting Rights Act, was a sham justification. That's the words of U.S. District Judge Jesse Furman in New York, because he initially testified before Congress that the Justice Department initiated this request for a citizenship question and that Congress Department was solely responding to a request from the Justice Department. But in fact, based on documents released as part of these lawsuits, Commerce Secretary Wilbur Ross was the one who really wanted a citizenship question on the 2020 census, pushed his staff to get one on the 2020 census, so much so that they shopped around this idea and asked multiple federal agencies, including the Justice Department, who lower level staff initially said, no, we don't want to ask a citizenship question and refer them over to Homeland Security. Wow. So what Ross testified before Congress was like wildly not accurate.

Congresswoman Grace Meng of New York said that Commerce Secretary Will Ross lied to her face. So a bunch of years ago, I previously covered a census and there was like a huge effort to try to get people, particularly non-citizen people or Latino families, to even respond to the census and to not be afraid of it. What has been the response to this citizenship question controversy in immigrant communities? I think my reporting has shown it's really exacerbated that fear. You're right, that fear has always been there, that there is a portion of the population that has this distress of the government, is unsure about giving up personal information. And hearing that there is a citizenship question being asked for the first time of every

household since 1950, that really raises the suspicions of a lot of immigrant communities. And they're unsure about exactly why the Trump administration wants to ask this question. A lot of people are concerned that this data could be used to deport individuals who are here in the country illegally, somehow used for immigration enforcement, even though Census Bureau data cannot be used for law enforcement, and even though data identifying individuals collected by the Census Bureau data cannot be used for law enforcement, and even though data identifying individuals collected by the Census Bureau cannot be released until 72 years after it's collected, these are federal laws protecting the confidentiality of census data that a lot of the public, either they don't know about or they don't trust this administration will uphold.

All right. We are going to take a quick break. And when we come back, we're going to take a quick break. And when we come back, we're going to talk about those arguments before the Supreme Court today. We're back with a new season of Rough Translation. Yeah. And this time we are following people who break the rules. I mean, lying is part of the business.

In my opinion, the best revenge against ISIS is to be humane. Am I supposed to punch her? Yeah, yeah. New episodes every other Wednesday. Subscribe. And we're back. And Hansi, you were at the Supreme Court today hearing those arguments. Was this your first time covering the court?

It was. Thank you, Nina Totenberg. She got you in? She helped me get a seat in the press box. So I had a kind of sideways view of the justices in the courtroom. What was it like? It was very surreal. I was sitting in a chair kind of behind these red velvet curtains

draping from the ceiling down to the floor. And I could kind of peek through and see the justices, you know, all nine of them that we've seen on TV all the time, but to see them in person. And then they're asking questions. And, you know, to see them in person and then they're asking questions. And as soon as oral arguments begin, they're asking questions. They are interrupting the attorneys who are trying to make their arguments. And we're going. And it lasted for 80 minutes.

And that's longer than usual. So that tells you how controversial this topic is. And how complicated this case is. We have multiple different groups of plaintiffs, multiple legal questions being considered. Even the House of Representatives had an attorney there representing him. So what is the fundamental legal question here? There are two main questions. One is, did Commerce Secretary Wilbur Ross, who oversees the Census Bureau, was his decision to add a citizenship question to the 2020 census, did that violate administrative law? Was that a misuse of his authority over the census? That's one big question. The other question is whether or not including a citizenship question on the 2020 census in this current political

climate, is that a constitutional decision? The plaintiffs are arguing that asking about citizenship right now really harms the government's ability to meet a constitutional decision. The plaintiffs are arguing that asking about citizenship right now really harms the government's ability to meet a constitutional mandate to count every person living in the country, given what the Census Bureau research is showing, that it's likely to discourage households with non-citizens and likely to risk the accuracy of the 2020 census count. And what is the argument that the government, that the Trump administration, was making before the Supreme Court? The Trump administration is, again, arguing that this question, they want it is the decider over questions to be added if he feels

that it is fit, and that he considered research from the Census Bureau, and he consulted with various officials about what would be the best way to collect better citizenship data, and that he ultimately decided that asking a citizenship question would be the way that he wanted to do it. And the administration is arguing that he was in his full authority in order to do that. So are they saying, like, it doesn't really matter what the origin is, whether it was the Justice Department or whether it was, you know, Steve Bannon and Chris Kobach, that Wilbur Ross, the Commerce Secretary, can do whatever he wants? Yeah, I mean, that's basically what they're saying. I mean, despite the controversy,

you know, you had these other courts, the lower courts who seem to buy that argument and say, look, administratively, this went against everything that you're supposed to do. But that's not at all what the how the lead a little bit here, but it looks pretty clear that they're going to uphold this by a 5-4 conservative to liberal ideological split. That's what everybody who has covered the court took away from it today. And the two things that really the justices seem to be hanging their hats on, the conservative justices, was number one, why not? Why not ask a question about citizenship? You had Brett Kavanaugh today, in fact, say, look, other countries ask citizenship questions. Why shouldn't we? The second part of this, and I think this is a real key part of the court ideologically, is they don't want to undercut Ross's authority. They really believe in an expansive view of executive power and of administrative power and the executive branch,

they feel like this is their call. This is what they decided to do. And so what? And it is a 5-4 conservative justice court now. It is. And, you know, it's the most conservative it's been in 75 years or so, as Nina Totenberg will say. You know, there are going to be a lot of these kinds of decisions where you see a lot of these kinds of big societal changes that happen generationally. That, you know, is interesting because a lot of Democrats really don't vote on the Supreme Court. Republicans have taken them. It's taken them a generation or so to get to this point. But they really organized around how to sort of vote on the Supreme Court. And it's a real key salient issue for them. And this is the fruit of that. And we should say that it is not necessarily the safest thing in the world to predict what

the Supreme Court will do based on oral arguments, but that it definitely seemed like they are headed in the direction, potentially, of allowing there to be a citizenship question on the 2020 census. Hansi, there are a bunch of deadlines. I know that it's not 2020 yet, but the census is coming, right? What comes next? It is coming. And there is a major deadline coming up by July 1st is when the Census Bureau says it has to start printing the paper forms for the 2020 census. There's 1.5 billion pieces of paper

that need to be printed, including the forms, the letters, the postcards that are heading to everyone's mailboxes. And that has to start this summer in order to get that done in time as it's currently budgeted. So the Census Bureau says it needs to know by the end of June which version of the 2020 census form to start printing, one with a citizenship question or one without. They have two versions ready to go, and they're waiting to tell the printer which one to use. And that's going to be a major deadline. This is going to be a census that everyone can participate online and also dial by phone. But paper is going to be super, super important for the 2020 census, especially for folks who do not have reliable internet access. And also in case of any major IT issues, if there's

any major technical breakdowns, paper will be the backup in order to make sure there's a 2020 census. And of course, 2020 census also has the numbers in it for 2020 in election year. So this is going to wind up being an issue into next year, certainly on the campaign trail with now you've got probably going to be about 20 Democrats running. 20 Democrats running in 2020, possibly talking about the 2020 census. That is a wrap for today. We will be back as soon as there's political news that you need to know about. To keep up with up-to-the-minute news, follow us on Facebook, Twitter, and Instagram. Just search for NPR Politics. I'm Tamara Keith. I cover the White House. I'm Domenico Montanaro, political editor.

And I'm Hansi Lewong, national correspondent. And thank you for listening to the NPR Politics Podcast.