WASHINGTON (CN) - Wilbur Ross had been secretary of commerce just two months when he emailed staffers about making a change to the census, one that could shape Democratic politics for 10 years to come. At Supreme Court oral arguments Tuesday, his missive is expected to figure prominently.
"I am mystified why nothing [has] been done in response to my months old request that we include the citizenship question," Ross wrote on May 2, 2017.
The secretary fired off the email just after 10 a.m. and soon received a reply. "We will get that in place," a staffer advised, adding that the effort would require the Commerce Department to work with the Justice Department.
For a federal judge in New York, the email was key to proving that Ross violated the public trust in pushing the citizenship question without following normal administrative procedures. U.S. District Judge Jesse Furman cited this email and other exchanges in ruling that the Justice Department's request that the question be added to help it enforce the Voting Rights Act was not the real reason the question ended up on the census, despite the administration's earlier claims.
The government is fighting now for a reversal, but time is limited for it to finalize the 2020 survey census, meaning that the case has taken the unusual trajectory of bypassing a federal circuit court.
U.S. Solicitor General Noel Francisco is mounting the defense for the Trump administration. His brief argues that, even if Ross had ulterior reasons for adding the citizenship question to the census, those reasons should not invalidate the action.
"Agency action does not fail APA review merely because, as is often the case, the agency decision-maker has unstated reasons for supporting a policy decision in addition to a stated reason that is both rational and supported by the record," the brief states.
The administration also says courts cannot be in the business of second-guessing what is fundamentally a policy judgment left for the political branches of government to decide.
"At the margins, each additional question on the decennial census yields additional useful information in exchange for potentially lower response rates and concomitantly higher follow-up costs," the administration's brief states. "Deciding whether the benefits outweigh the costs is fundamentally a policy judgment — one that Secretary Ross expressly made here."
Jonathan Entin, a professor at Case Western Reserve University School of Law, said one problem with this argument is that the Census Bureau expressly said adding the citizenship question would harm the count.
"This is one of those unusual situations where the secretary of commerce has rejected the views of the Census Bureau," Entin said in an interview. "To me that's a potential weakness for the government. It may not be fatal, but it certainly is an unusual posture because I can't think of a situation, in the last 50 years anyway, where there's been litigation about the census and the secretary of commerce has gone against the recommendations of the bureau."
Specifically, the Census Bureau's top scientist, John Abowd, advised Ross that including it on the census would reduce response rates for households that include people who are not citizens by at least 5.1 percentage points, a total of about 630,000 households. The Census Bureau follows up after the census to ensure correct counts, but the large increase in nonresponding households would increase the cost of the census by at least $27.5 million.
Abowd’s team further told Ross he could accomplish the Justice Department's goals with data the federal government already collects. In the end, the team gave Ross two alternative suggestions and expressly advised him not to add the question.
