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Will the Supreme Court Go Nativist?

A citizenship question on the 2020 census could have a lasting impact — including on the Supreme Court itself, argues Brennan Center Fellow Ciara Torres-Spelliscy.

The Supreme Court is set to decide whether the Department of Commerce can pose a question about respondents’ citizenship status on the 2020 census.

The prospect of the question being added has caused concern that if enough people react to the citizenship question negatively by failing to fill out the census completely, there could be an undercount of the population in 2020 potentially running into the millions. (In 2016, 9.8 percent of U.S. households included a non-citizen.) And such an undercount will not be evenly distributed and could have disproportionate impact in states with large immigrant populations like Arizona, California, New York, and Texas.

The census has robust rules to protect confidentiality, but there remains a strong fear of repercussions from the Trump administration, which has arrested undocumented workers at courthouses, enacted an atrocious family separation policy, and routinely vilified undocumented migrants and asylum seekers.

The word from last week’s oral arguments in the case, Department of Commerce v. New York, is that the conservative majority on the Court seems poised to give the go-ahead to adding the citizenship question. But I would urge each of them to think about which side of history they want to be on. To put a fine point on the matter, do they want to be on the white nativist side of history?

Historically, during its nativist streaks, the Supreme Court has turned a blind eye to immigrants and other communities of color they deemed unworthy of full rights. Some of these cases are now infamous, such as Korematsu v. United States, which allowed the federal government to put Japanese immigrants and Japanese Americans into detention camps. The Court’s ruling in Dred Scott v. Sandford fenced out African Americans from being considered citizens. As Chief Justice Taney wrote in Dred Scott, “We [the majority of the Supreme Court] think they [African Americans] are not, and that they are not included, and were not intended to be included, under the word ‘citizens’ in the Constitution[.]”

And then there are the lesser-known nativist cases: US v. Thind, in which the Court decided that a man from India could not become a U.S. citizen because he wasn’t white, which built on the earlier Ozawa v. United States, which likewise ruled that a man from Japan could not be naturalized because he wasn’t white. Thind and Ozawa have been largely lost to the dustbin of history and are filed under the category, “what the hell were they thinking?”

Fortunately, the Court has also at times been the unlikely hero to immigrants. In the 1886 case Yick Wo v. Hopkins, the Court considered the question of whether equal protection applied to immigrants in San Francisco, which had passed a law that made it nearly impossible for Chinese businessmen to run laundries. The Court concluded: “The rights of the petitioners … are not less because they are aliens …The fourteenth amendment to the constitution is not confined to the protection of citizens.” The Court also didn’t turn a blind eye to the discrimination that Chinese immigrants were facing, noting, “[t]he fact of this discrimination [against the Chinese] is admitted. No reason for it is shown, and the conclusion cannot be resisted that no reason for it exists except hostility to the race and nationality to which the petitioners belong, and which, in the eye of the law, is not justified. The discrimination is, therefore, illegal[.]”

The Supreme Court also protected immigrant rights in the 1982 case Plyler v. Doe, in which the Court considered whether Texas could essentially bar children of undocumented immigrants access to public schools. As Justice William J. Brennan wrote for the Court, Texas argued “at the outset that undocumented aliens, because of their immigration status, are not ‘persons within the jurisdiction’ of the State of Texas, and that they therefore have no right to the equal protection of Texas law. We reject this argument. Whatever his status under the immigration laws, an alien is surely a ‘person’ in any ordinary sense of that term.” Justice Brennan continued: “The Equal Protection Clause was intended to work nothing less than the abolition of all caste-based and invidious class-based legislation. That objective is fundamentally at odds with the power the State asserts here to classify persons subject to its laws as nonetheless excepted from its protection.” And in the end, the Supreme Court ruled that barring children of undocumented migrants from public school was unconstitutional.

Both Yick Wo and Plyler embrace an inclusive vision that protects all persons in America under the Constitution. And the Constitution requires that the census must capture an “actual Enumeration” of all persons present here, not just American citizens. But adding a citizenship question in 2020 is likely to ruin the count. If the Roberts Supreme Court allows this, it will be on the nativist side of history in a nation of immigrants.

The views expressed are the author’s own and not necessarily those of the Brennan Center for Justice.

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