WASHINGTON (CN) – Agreeing for the first time in 15 years to review a ruling that has not yet been decided by an intermediate court of appeals, the Supreme Court accepted a challenge Friday by the Trump administration in support of its citizenship question on the 2020 census.
Their decision could shift the balance of political power in the United States for a decade.
The rare accommodation speaks to the urgency of the pending case: The matter must be decided before the decennial survey goes to print in June. Ahead of that, the Supreme Court has scheduled blockbuster arguments for this April.
In January, a New York federal judge emphatically barred Commerce Secretary Wilbur Ross from questioning census-takers about their citizenship status. U.S. District Judge Jesse Furman found that the “arbitrary and capricious” change “violated the law” and “violated the public trust.”
After consulting with anti-immigration hardliners in the Trump administration, Ross insisted that the question would help the Department of Justice enforce the Voting Rights Act. But a group of challengers led by the New York Attorney General’s Office have argued that this claim is a transparent pretext disguising the government’s true intent to reduce immigrant communities’ participation in the census.
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 cheat immigrants out of political representation and hundreds of billions of dollars in funding.
On Twitter Friday, University of Texas School of Law professor Steve Vladeck noted that the last district court ruling that the Supreme Court fast-tracked as it did here occurred on Aug. 2, 2004, with U.S. v. Fanfan — a companion case to U.S. v. Booker, the watershed ruling on the federal sentencing guidelines.
Beyond the long-term political implications of the census fight, Furman ruled that Ross’ power grab puts the rule of law itself at stake.
“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,’” he 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.’”
New York Attorney General Letitia James, taking over the case for her predecessor Barbara Underwood, warned that upholding the citizenship question would “incite widespread fear in immigrant communities and greatly impair the accuracy of population counts.”
“This would have far-reaching and long-lasting effects and is antithetical to the purpose of the census,” she said in a statement. “The district court recognized these facts in ruling in favor of our challenge and we look forward to seeing the Trump administration in court once again.”
Per its custom, the justices did not issue any comment this afternoon in adding the case to their April calendar.
January’s ruling was not a wholesale victory for James’ team: though the lawsuit charged violations of the Constitution’s enumeration clause and Fifth Amendment rights to equal protection, Judge Furman stopped short of finding constitutional violations.
Instead he said that Ross violated the Administrative Procedures Act, which prohibits arbitrary exercises of government power.
“Those violations are no mere trifles,” Furman 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.
In a separate case, the fight over the citizenship question is pending in California as well.
In his January ruling, Furman said the New York challengers may have proved that Ross intended to discriminate against immigrants of color.
“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.
Before the New York trial, the New York attorney general attempted to depose Ross about these conversations. But although Furman ordered Ross’ deposition, the Supreme Court temporarily blocked it before trial.
“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,” Furman noted in his ruling.
Had the Supreme Court let Ross testify, Furman noted, the citizenship question challengers may have proven constitutional violations as well.