SAN FRANCISCO (CN) – A federal judge on Friday appeared stunned by the Trump administration's position that courts lack power to review any census question, including a citizenship query that opponents say will weaken the political power of areas with high immigrant populations.
"Under your theory of the [Administrative Procedure Act], there's simply no question – no matter how absurd – that would be subject to review," U.S. District Judge Richard Seeborg told a Department of Justice lawyer in court Friday.
Seeborg is reviewing two of four lawsuits filed against Commerce Secretary Wilbur Ross. The lawsuits claim adding a citizenship question to the 2020 census will lead to an undercount of immigrants and reduction in political representatives, electoral votes and federal funding for parts of the country with high concentrations of immigrants.
On Friday, Seeborg heard arguments on the Trump administration's motion to dismiss lawsuits brought by the state of California and several cities and counties, including San Jose and Los Angeles.
U.S. Justice Department lawyer Kate Bailey ticked off a litany of reasons why the suits should be thrown out of court. She said the plaintiffs lack standing because their theory of harm relies on third parties deciding not to participate in the census. She further argued that the Commerce secretary has total discretion in adding demographic questions to the census, and that the plaintiffs can't prove one question would lead to an undercount of the population.
“Let's say they can identify one person who would have otherwise responded to the census, but because of the citizenship question, they would not be willing to do so," Seeborg posited.
"That would still be the independent choice of that third party to violate the law," Bailey responded.
The judge posed another hypothetical: What if the Commerce secretary decided to ask participants if they support the Trump administration's policies?
Bailey insisted the courts would still lack power to review such an action because the Census Act of 1790 provides no standards by which to judge the fitness of survey questions.
Asking any demographic question could result in a reduction of census participation, Bailey added, but that doesn't mean questions about gender, race or martial status can be stuck down by the courts.
Responding to that argument, California Deputy Attorney General Gabrielle Boutin insisted the citizenship question is "so unique and sensitive" that it will affect how many representatives California has in Congress.
"How much can a certain act affect accuracy before it's unconstitutional," she asked.
From 1790 to 1950, a citizenship question appeared on the decennial U.S. Census survey. Because of that, Seeborg was skeptical of claims that reviving the question now would violate the Enumeration Clause of the U.S. Constitution, which calls for an accurate count of the country's population every 10 years.
“Under the Enumeration Clause, I can't see how it could be constitutional before but unconstitutional now," Seeborg said.
But the judge indicated he will likely advance at least some claims in the lawsuits, such as alleged violations of the Administrative Procedure Act.
"It is my strong sense that in one form or another I am going to find that the case can proceed," Seeborg said.
Last month, a federal judge in New York advanced a separate lawsuit over the census question, citing evidence that suggests Ross' initial reasoning for adding the question was "pretextual." A related case is pending in the District of Maryland.
Ross previously stated the decision to add the question was based on a request from the Justice Department to assist in the enforcement of the Voting Rights Act. Since then, Ross acknowledged he asked the Justice Department to write that request and that he was considering adding the citizenship question when he began his job in February 2017, contradicting his prior statements and sworn testimony to Congress.
After more than two hours of debate, Seeborg ended the hearing with no official ruling. He scheduled a summary judgment hearing on Dec. 7 and a bench trial for Jan. 7, 2019.
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