Judge Orders Trump Administration To Remove 2020 Census Citizenship Question

Jan 15, 2019
Originally published on May 21, 2019 2:39 pm

Updated at 5:08 p.m. ET

A federal judge in New York has ruled against the Trump administration's decision to add a citizenship question to the 2020 census.

U.S. District Judge Jesse Furman ordered the administration to stop its plans to include the controversial question on forms for the upcoming national head count "without curing the legal defects" the judge identified in his 277-page opinion released on Tuesday.

The question asks, "Is this person a citizen of the United States?" Such a question has not been included among the census questions for all U.S. households since 1950, although it has been asked of a sample of households for past head counts and for the Census Bureau's American Community Survey.

Furman found that the decision by Commerce Secretary Wilbur Ross to add the citizenship question to the 2020 census was "unlawful" because of "a veritable smorgasbord of classic, clear-cut" violations of the Administrative Procedure Act, including cherry-picking evidence to support his choice. Ross oversees the Census Bureau.

"To conclude otherwise and let Secretary Ross's decision stand would undermine the proposition — central to the rule of law — that ours is a 'government of laws, and not of men,' " Furman wrote, quoting one of the country's Founding Fathers, John Adams.

Ross, Furman added, "ignored and violated a clear statutory duty" to use existing government records about people's citizenship status as much as possible rather than using the census to ask a citizenship question. In another violation of the law, Ross "announced his decision in a manner that concealed its true basis rather than explaining it," Furman said.

Furman left open the possibility that Ross might be able to move forward with the question if he were to meet a series of specific requirements, including providing his "real rationale" that would support his decision to add the question.

The judge also ruled that the plaintiffs did not provide enough evidence to prove their claim that Ross' decision was intended to discriminate against Latinos, Asian-Americans, Arab-Americans and immigrant communities of color in general. Such a claim, Furman noted, would need to be backed up with testimony from Ross about his intent for the question.

The issue of questioning Ross, however, has been put on hold after the Supreme Court agreed to weigh in on a dispute over what evidence can be considered for the lawsuits. The justices are scheduled to hear oral arguments in February on that issue, as well as on whether Ross can be questioned under oath by the plaintiffs' attorneys about why he approved adding the question.

Furman's decision marks a significant milestone in a legal battle that began shortly after the Trump administration announced last year that the 2020 census would include a controversial question about U.S. citizenship status.

"Today's ruling is a win for New Yorkers and Americans across the country who believe in a fair and accurate count of the residents of our nation," said New York State Attorney General Letitia James, whose office represented some of the lead plaintiffs under the state's former attorney general, Barbara Underwood.

Dale Ho, one of the lead plaintiffs' attorneys at the ACLU, called Furman's opinion a "forceful rebuke" of the Trump administration's actions.

"These are not the acts and statements of government officials who are merely trying to cut through red tape," Ho said during a press call, referring to the way Ross pushed to get a citizenship question onto the census. "Instead, they are the acts and statements of officials with something to hide."

The Census Bureau's public information office referred NPR's request for comment to Commerce Department spokesperson Rebecca Glover, who deferred to the Justice Department for comment.

"We are disappointed and are still reviewing the ruling," said Kelly Laco, a Justice Department spokesperson, in a written statement. "Reinstating the citizenship question ultimately protects the right to vote and helps ensure free and fair elections for all Americans."

Furman has noted that he does not expect his order to be the final word on the question's fate. The district court ruling in New York is expected to be appealed to the 2nd U.S. Circuit Court of Appeals and, ultimately, to the Supreme Court.

"If a higher court disagrees with this Court's ruling, the citizenship question may well end up on the questionnaire," Furman wrote in his opinion, adding that the administration should be allowed to prepare for that scenario.

He specified that the Trump administration can continue to "study" using the census to collect citizenship data and to test a citizenship question, as the bureau plans to do beginning in June.

In addition to the two lead cases before Furman at the U.S. District Court for the Southern District of New York, the administration is fighting five more lawsuits across the country filed by dozens of states, cities and other groups that want the question removed. A second trial over the question began earlier this month in California, and another is scheduled to begin in Maryland on Jan. 22.

The administration has maintained that the citizenship question was added because the Justice Department wants to use the responses to better enforce Voting Rights Act provisions that protect racial and language minorities from being discriminated against.

The lawsuits' plaintiffs, however, have argued that the administration has been misleading the public. Ross, the plaintiffs insist, misused his authority over the census and, by adding the citizenship question, discriminated against immigrant communities of color. Research by the Census Bureau suggests asking about citizenship status in the current political climate will scare households with noncitizens from participating in the head count. That, in turn, could jeopardize the constitutionally mandated head count of every person living in the U.S.

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The Trump administration suffered a big defeat in court today over its plans to add a citizenship question to the 2020 census. A federal judge in New York has concluded the question was unlawful and should be removed from census forms. NPR's Hansi Lo Wang has been covering this legal battle from the very beginning. He joins me now. Hey, Hansi.

HANSI LO WANG, BYLINE: Hey, Mary Louise.

KELLY: All right, before we get into the details of today's ruling, remind us just what exactly the wording is - was of the citizenship question.

WANG: The question asks, is this person a citizen of the United States? It's the kind of question that a sample of U.S. households have been asked by the government - but not all - since the 1950 census close to 70 years ago. And the Trump administration says it wants to add a citizenship question onto the 2020 census because it wants more detailed citizenship data to better enforce part of the Voting Rights Act, specifically Section Two of the Voting Rights Act, which has protections against discrimination of racial and language minorities.

KELLY: Which explains perhaps why so many states and cities and all kinds of groups have sued to try to get this question taken off the census.

WANG: Right. They don't buy that reasoning from the Trump administration. The bottom line here is that all of these plaintiffs are worried that this question will result in fewer people being counted for the 2020 census. Remember; the Constitution requires a head count of - every 10 years of every person living in the U.S. But Census Bureau research suggests this question, the citizenship question, will scare away immigrants from participating. And that could have a direct impact on how power and money are distributed in this country.

You know, the plaintiffs are also arguing that the administration was misleading the public by using this Voting Rights Act to justify adding this question and not listening to recommendations from Census Bureau staffers who advocated for using existing government records instead of a citizenship question. And we heard earlier today from one of the attorneys for the plaintiffs, Dale Ho of the American Civil Liberties Union. Let's listen to what he said.


DALE HO: These are not the acts and statements of government officials who are merely trying to cut through red tape. Instead they are the acts and statements of officials with something to hide.

WANG: And I did reach out to the Justice Department, who sent back a statement. They said they are disappointed by this decision, and they are still, quote, "reviewing the ruling."

KELLY: OK, so that's what the various parties invested in this are saying. What's the judge saying? What was his reasoning behind his ruling today?

WANG: Well, U.S. District Judge Jesse Furman wrote a very thorough opinion. It's really, you know, more than 270 pages written by someone who's expecting a higher court to look over his shoulder. You know, I was there every day for the trial in New York over the citizenship question. And Furman has said that he's expecting his decision to be appealed, so he put out a very carefully worded opinion.

And some of the main points here is that - one of them is essentially that he believes that Commerce Secretary Wilbur Ross, who oversees the census - that he made the wrong call by adding a citizenship question before deciding to use existing government records as much as possible and that he made a, quote, "smorgasbord of violations" of administrative procedure act, including cherry-picking evidence to support his decision to add a citizenship question.

KELLY: Quickly before I let you go, Hansi, you said the judge expects his decision to be appealed. I mean, the timing here is tricky, right? We're a year away from the start of the 2020 census. Is that enough time for this to play out however it's going to ultimately play out in the courts?

WANG: It's going to be very, very tight. And we can't forget that there are lawsuits also in California and Maryland. There are - all underway. And we're going to keep on watching to see where this all - how this all unfolds.

KELLY: NPR's Hansi Lo Wang covering all things census-related - thank you, Hansi.

WANG: You're welcome. Transcript provided by NPR, Copyright NPR.