Citizenship Question on 2020 Census Eviscerated by Judge

President Donald Trump, flanked by Commerce Secretary Wilbur Ross, left, and Energy Secretary Rick Perry, is seen in the Oval Office of the White House in Washington on March 24, 2017. (AP Photo/Evan Vucci, File)

(CN) – Blocking the addition of a citizenship question to the 2020 census, a federal judge excoriated Commerce Secretary Wilbur Ross on Tuesday with a ruling that says the Trump appointee “violated the public trust.”

“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,’” U.S. District Judge Jesse Furman wrote, quoting John Adams’ Novanglus Papers. “And it would do so with respect to what Congress itself has described as ‘one of the most critical constitutional functions our federal government performs.’”

Ross had claimed that he added the question to help the Department of Justice enforce the Voting Rights Act, but a group of challengers led by the New York Attorney General’s Office alleged that this was a pretext to mask his true goal of depressing participation in immigrant communities. 

Representing 18 states, 15 cities and various civil rights groups, the challengers argued that the undercount caused by such manipulation of the once-in-a-decade survey would reduce political representation and hundreds of billions of dollars in funding.

New York Attorney General Letitia James, who recently succeeded former AG Barbara Underwood, called the ruling a victory for a fair and accurate census count.

“The attempts by the Trump administration to mandate a question about citizenship were not rooted in a desire to strengthen the census process and would only undermine our immigrant communities,” James said in a statement. “Inciting fear in our residents is not only immoral, but also ill-conceived. Accurate population counts are imperative for allocating funding for critical programs and support systems and for determining fair representation in Congress and the Electoral College.”

New York Civil Liberties Union director Donna Lieberman echoed that sentiment.

“Today’s ruling provides an important check against the anti-immigrant overreach of the Trump administration,” Lieberman said. “It has been obvious since day one that the Trump administration rushed to add a citizenship question to intimidate and undercount immigrant communities, ignored the recommendations of scientists at the Census Bureau, and then tried to cover its true motives. New Yorkers know that we all deserve representation and that no one should be intimidated from being counted.”

The ruling was not a wholesale victory: though the lawsuit charged violations of the Constitution’s enumeration clause and Fifth Amendment rights to equal protection, Judge Furman stopped short Tuesday of finding constitutional violations.

Instead he said that Ross made an “arbitrary and capricious decision” in violation of the Administrative Procedures Act.

“Those violations are no mere trifles,” he wrote. “The fair and orderly administration of the census is one of the Secretary of Commerce’s most important duties, as it is critical that the public have ‘confidence in the integrity of the process.’”

“And although some may deride its requirements as ‘red tape,’ the APA exists to protect core constitutional and democratic values: It ensures that agencies exercise only the authority that Congress has given them, that they exercise that authority reasonably, and that they follow applicable procedures — in short, it ensures that agencies remain accountable to the public they serve,” the opinion continues.

The New York Attorney General’s office did not immediately respond to a request for comment.

Spanning 277 pages, Furman admitted: “The court’s opinion is, to put it mildly, long.”

“But that is for good reasons,” he continued. “For one thing, the court has taken care to thoroughly examine every issue because the integrity of the census is a matter of national importance. As noted, the population count has massive and lasting consequences. And it occurs only once a decade, with no possibility of a do-over if it turns out to be flawed.”

Separate from the New York case, the fight over the citizenship question is pending in California as well and will likely to escalate to the Supreme Court.

In his ruling today, Furman said the New York challengers may have proved that Ross intended to discriminate against immigrants of color had the Supreme Court not paused the secretary’s deposition last year.

“To be fair, it is possible that plaintiffs could have carried their burden on that score had they had access to sworn testimony from Secretary Ross himself,” Furman wrote.  

Internal Commerce Department files showed that Ross added the citizenship question after consulting with President Donald Trump’s most anti-immigrant hardliners, a crew that included ex-Kansas Secretary of State Kris Kobach, former White House strategist Steve Bannon and former Attorney General Jeff Sessions.

“Secretary Ross’s testimony could have revealed the nature of his conversations with Kobach, Bannon, and Attorney General Sessions, and whether President Trump directed the addition of the citizenship question,” the opinion states.

Today’s ruling voids the pending Supreme Court push to depose Ross as moot.

The Census Bureau did not immediately respond to the email request for comment. Its voicemail had an away message describing the line as unstaffed in the wake of the government shutdown, which recently became the longest in U.S. history.

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