Judge Bars Citizenship Question for Census, Trump Administration Likely to Appeal

By Janita Kan
Janita Kan
Janita Kan
Janita Kan is a reporter based in New York covering the Justice Department, courts, and First Amendment.
January 15, 2019 Updated: January 15, 2019

A federal judge in New York has barred the Trump administration from reintroducing a question about citizenship into the 2020 census, a decision that will likely be appealed.

U.S. District Judge Jesse Furman handed down a 277-page decision on Jan. 15, ruling that while the question is constitutional, Commerce Secretary Wilbur Ross had acted arbitrarily and did not follow procedure.

In his opinion, Furman said Ross violated the Administrative Procedure Act (APA)—which governs how federal agencies may propose and establish regulations—as the law requires him to collect citizenship data using administrative records instead of through “‘direct inquiries’ on a survey such as the census.” He added that Ross’s decision was “arbitrary and capricious” as he failed to consider several important aspects of the problem and “failed to justify significant departures from past policies and practices.”

“We are disappointed and are still reviewing the ruling,” Department of Justice (DOJ) spokeswoman Kelly Laco said in a statement.

The lawsuit, spearheaded by state and local Democratic officials, was filed in April last year. It was consolidated with another suit by several immigrant rights groups accusing the government of discrimination against nonwhite immigrants in violation of the Constitution’s guarantee of equal protection under the law. Furman said the plaintiffs were unable to prove Ross was motivated by discriminatory intent.

The plaintiff also argued that illegal aliens will fear to participate in the survey, which would disproportionally affect the population counts in Democratic-leaning states and reduce funding to those states.

Proponents of the question argue that aliens who are in the country illegally should not be counted to determine congressional districts and the distribution of federal aid.

University of Texas School of Law professor Stephen Vladeck told Fox News that Furman’s decision won’t be the final word on the matter as the Trump administration would likely appeal.

“The Supreme Court is already scheduled to hear an appeal related to the pretrial proceedings in this case in February, and the government will certainly appeal this decision to the federal appeals court in New York and, if necessary, the justices. That said, today’s ruling means that, for now, at least, there won’t be a citizenship question on the 2020 census,” Vladeck told the news broadcaster.

The Supreme Court has already agreed to hear a portion of the case on Feb. 19, after multiple parties including several states across the nation sued the Census Bureau and its parent agency, the Department of Commerce.

In that case, the high court is expected to decide whether those challenging the decision to include the citizenship question must rely exclusively on the administrative record detailing the government’s decision-making process, or whether the courts should consider the intention of the government officials participating in that process.

Multistate Lawsuits

The DOJ asked the Census Bureau in December 2017 to reinstate the citizenship question, and it was done so in March last year. Court documents show that Ross had reviewed several options to provide the citizen voting age population data to the DOJ and concluded the census would provide the “most complete and accurate data.”

Ross also said the citizenship question has been well-tested, as it has been included in the American Community Survey—an annual survey of a sample population—since 2005.

Meanwhile, Hans A. von Spakovsky, a senior legal fellow at the Heritage Foundation, wrote in a piece last year that the public has a right to expect that the government will do everything in its power to get as accurate a picture as possible of the American body politic.

“That includes, as Thomas Jefferson recommended, knowing how many citizens and noncitizens make up our democratic republic,” he wrote.

After the announcement, several state governments and interest groups across multiple states, including New York, Maryland, and California, filed lawsuits against the Trump administration. The DOJ tried to get the cases tossed out, but their efforts have been rejected by multiple judges in several states. The hearing in California is currently underway in San Francisco.

Former Attorney General Jeff Sessions described the lawsuits as a judicial encroachment, a term he defines as an overreach by the courts “allowing unprecedented reviews of governmental operations.” The attorney general said that the court wants to examine Ross’s motives, while the real issue before the court is if the census question “is either legal or illegal.”

“The words on the page don’t have a motive; they are either permitted or they are not,” Sessions said last year. “But the judge has decided to hold a trial over the inner-workings of a Cabinet secretary’s mind.”

The Constitution requires the census to be collected every 10 years. This information helps determine how many seats a state holds in the Congress based on its respective populations. The federal government also relies on this data to determine how to distribute billions of dollars in funding each year like Medicaid, Medicare Part B, and the Highway Planning and Construction Program. The United States previously collected people’s citizenship status from 1820 to 1950.

Epoch Times reporter Ivan Pentchoukov, Matthew Vadum, and The Associated Press contributed to this report

Janita Kan
Janita Kan is a reporter based in New York covering the Justice Department, courts, and First Amendment.