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Key Themes from the Citizenship Question Amicus Briefs

Friend-of-the-court filings flag key themes for the Supreme Court’s census citizenship question case.

April 18, 2019

When the Supreme Court sits for oral argu­ment on April 23 in Depart­ment of Commerce v. New York, the Justices will have the bene­fit of three dozen amicus (or friend-of-the-court) briefs that have been filed in support of the plaintiffs chal­len­ging Commerce Secret­ary Wilbur Ross’s decision to add a citizen­ship ques­tion to the 2020 Census.

The briefs combine to advance several key themes. Here are the high­lights.

Getting the Census Right Is a Bipar­tisan Concern

The briefs show a strong oppos­i­tion to the citizen­ship ques­tion that tran­scends partisan divi­sions and polit­ical admin­is­tra­tions. Three briefs are partic­u­larly note­worthy in this regard.

First, five former direct­ors of the Census Bureau who served under Repub­lican and Demo­cratic admin­is­tra­tions emphas­ize, among other things, the import­ance of a head count untain­ted by polit­ical bias—or even the appear­ance of bias. As they explain, the Census Bureau has rejec­ted for decades any efforts to ask every­one in the coun­try about their citizen­ship ques­tion for fear that “the census would be char­ac­ter­ized, and perceived, as a polit­ical exer­cise rather than an import­ant part of our civic life carried out by a nonpar­tisan scientific agency staffed almost entirely by career civil servants.”

Next, federal civil rights offi­cials who served in every pres­id­en­tial admin­is­tra­tion from Reagan through Obama also chal­lenge the Trump admin­is­tra­tion’s claims that citizen­ship data collec­ted from the decen­nial census would help enforce the Voting Rights Act. These six former heads of the Civil Rights Divi­sion of the Depart­ment of Justice assert that the citizen­ship ques­tion is “a purpor­ted effort to address a theor­et­ical prob­lem that has not been real­ized in prac­tice,” and that the ques­tion will impose “a signi­fic­ant new obstacle to voting rights litig­a­tion” because the under­count it will produce will dilute the voting power of the communit­ies that the Act is meant to protect.

Finally, a group of 190 bipar­tisan elec­ted offi­cials from both red and blue states cata­log the harms that the ques­tion will inflict on states and indi­vidu­als across the nation, with adverse effects on everything from polit­ical repres­ent­a­tion and health­care, to educa­tion and crime preven­tion. The elec­ted offi­cials’ brief makes clear that the citizen­ship ques­tion’s harms don’t acknow­ledge a red state/blue state divide.

The Court’s Decision Could Have Signi­fic­ant Implic­a­tions for Agency Action

The briefs also high­light the case’s poten­tially substan­tial implic­a­tions for admin­is­trat­ive law and judi­cial over­sight of the decisions federal agen­cies make.

The Commerce Depart­ment has repeatedly argued that courts cannot review the commerce secret­ary’s decisions regard­ing the census. But admin­is­trat­ive and consti­tu­tional law schol­ars explain that the Commerce Depart­ment’s decision was the result of such “arbit­rary and capri­cious decision­mak­ing” and was so reli­ant on reas­ons that “collapse on even curs­ory inspec­tion” that the judi­ciary must step in. If the Court fails to do so, it would be endors­ing “a remark­able claim: that even if the secret­ary fails to prop­erly notify Congress of changes to the census, no court can hear any case chal­len­ging his decisions regard­ing one of the most funda­mental instru­ments of polit­ical repres­ent­a­tion and fund­ing alloc­a­tion in our consti­tu­tional order.”

Former federal district court judges appoin­ted by both Repub­lican and Demo­cratic pres­id­ents urge the Court to uphold the district court’s decision strik­ing down the ques­tion under the Admin­is­trat­ive Proced­ure Act. Their brief argues that defer­ence to trial courts’ factual find­ings is crit­ical to the proper func­tion­ing of the federal judi­ciary and its legit­im­acy in the eyes of the public.

These briefs rein­force the notion that if the Court allows Secret­ary Ross’s decision to stand, it would substan­tially weaken the judi­ciary’s abil­it­ies to monitor agency decision-making in many contexts, under any pres­id­en­tial admin­is­tra­tion. That would essen­tially allow agen­cies to make decisions without provid­ing the kind of trans­par­ent, reasoned bases for their actions that our demo­cratic system of govern­ment demands.

The Commerce Depart­ment Relies on an Inac­cur­ate Histor­ical Narrat­ive

The amicus briefs also push back strongly against one of the Trump admin­is­tra­tion’s primary justi­fic­a­tions for adding the ques­tion: history. The admin­is­tra­tion has repeatedly argued that the census has a long tradi­tion of asking about citizen­ship, and that Secret­ary Ross is there­fore merely “rein­stat­ing” the ques­tion. The former Census Bureau direct­ors, however, contend that Secret­ary Ross’s proposal “is, in fact, a signi­fic­ant change that devi­ates from the Census Bureau’s long­stand­ing prac­tice.” Echo­ing this theme, lead­ing census histor­i­ans note in their brief that the Census Bureau has never asked for the citizen­ship status of every­one in the United States. Moreover, the histor­i­ans argue, stat­ist­ical prac­tice has changed so drastic­ally over the last several decades that censuses from the 19th and early-20th centur­ies cannot and should not serve as models for the contem­por­ary census.

The Experts Agree: This Isn’t How to Conduct an Accur­ate Census

The briefs also assert that Secret­ary Ross’s process for adding the citizen­ship ques­tion—without test­ing or subject­ing the ques­tion to other proced­ural safe­guard­s—de­vi­ated from the accep­ted norms for creat­ing effect­ive, accur­ate surveys.

Lead­ing stat­ist­ical organ­iz­a­tions argue that the Commerce Depart­ment’s “last-minute addi­tion of a citizen­ship ques­tion was incon­sist­ent with Census Bureau stand­ards and unne­ces­sar­ily threatens the integ­rity of census data.” As their brief explains, the Census Bureau is subject to federal stand­ards meant to insure data qual­ity and util­ity—­for example, pretest­ing, identi­fy­ing prob­lems, and refin­ing a proposed ques­tion prior to imple­ment­ing it. The Bureau’s stand­ards are consist­ent with profes­sional stat­ist­ical stand­ard­s—yet Secret­ary Ross followed none of them when he added the ques­tion.

The former Census Bureau direct­ors, moreover, argue that maxim­iz­ing volun­tary parti­cip­a­tion in the census is vital to achiev­ing accur­ate results. And “[t]hat is why the Census Bureau employs an extens­ive multi-year test­ing process to assess the effects of possible changes to ques­tion­naires —par­tic­u­larly with respect to the ques­tion­naire that is sent to every house­hold in the United States.”

A Citizen­ship Ques­tion Would Harm Every Sector of Amer­ican Soci­ety

Together, the briefs contend that many aspects of Amer­ican life would be harmed if the ques­tion were to appear on the 2020 Census.

Many amici emphas­ize the extent to which indi­vidu­als and communit­ies will suffer from an under­count. Minor­ity and low-income communit­ies in partic­u­lar stand to lose polit­ical repres­ent­a­tion and fund­ing for their schools, hous­ing, infra­struc­ture, and health­care, among other crit­ical needs, if the ques­tion goes forward.

A group of busi­nesses and the Nielsen Company explain how corpor­a­tions rely on census data to determ­ine consumer needs and make busi­ness decisions. As Nielsen’s brief puts it, an under­count of minor­ity communit­ies would “harm Amer­ican busi­nesses who will miss out on the oppor­tun­ity to sell products and content to an ever-increas­ing portion of the U.S. popu­la­tion. This mismatch between a community that wants to be served and corpor­a­tions that want to serve it will cost Amer­ican busi­nesses billions of dollars in lost reven­ues.”

Counties and local govern­ments remark that an under­count would render them ill-equipped to plan for things like natural disasters and public-health emer­gen­cies. And these diffi­culties would only compound the prob­lems caused by reduced fund­ing for the vital services they provide like nutri­tion and child-abuse preven­tion programs.

Nonprofits that provide essen­tial social services note that the ques­tion would lead to a severe reduc­tion in their fund­ing, much of which comes from the federal govern­ment. And the phil­an­thropic community contends that it will not be able to make up for those fund­ing gaps.

Together, the briefs paint a power­ful picture of just how deeply the adverse effects of a citizen­ship ques­tion would cut.

(Image: shel­ma1/BCJ)