(AP Photo/Mary Altaffer)
New York Attorney General Eric Schneiderman poses for a photo with members of District Council 37 after a news conference on April 3, 2018, in New York. Schneiderman announced a new lawsuit by seventeen states, the District of Columbia, and six cities against the Trump administration's plan to add a citizenship demand to the census questionnaire.
The Commerce Department's decision to ask about citizenship on the census typifies the way the Trump administration does business: It’s hasty and sloppy, disregards expert opinion, is calculated to hurt Democrats and immigrants, misstates the facts, wastes taxpayer dollars, and may violate the Constitution.
Opponents of the decision, which was announced at the eleventh hour with none of the years-long testing usually conducted for questions added to the census, are seeking redress both in the courts and on Capitol Hill. Recent lawsuits filed by the attorneys general of California and New York make a strong case that the move violates both the constitutional requirement for an accurate population count and the Administrative Procedure Act’s bar on government decisions that are “arbitrary” and “capricious.”
But Congress may get the last word. Democrats in both the Senate and the House have called for hearings to examine the accuracy and cost implications of adding the citizenship question. House Democrat Carolyn Maloney of New York has introduced legislation that would bar last-minute census questions without proper research, effectively blocking the administration’s plan. Appropriators may also want to ask the administration about the many extra millions it will cost the Census Bureau to ask about citizenship, since low response rates invariably necessitate labor-intensive follow-up.
GOP leaders don't exactly have a track record of challenging this administration's bad decisions, but Republicans also stand to lose if the census vastly undercounts certain populations. Immigrant response rates tend to lag in any case, a problem already exacerbated by the Trump administration’s anti-immigrant rhetoric and policies. Asking about citizenship is expected to suppress census participation even further, not just among unauthorized immigrants, but among legal noncitizens and naturalized Americans. Another group likely to be undercounted would be the American-born U.S. citizen children of undocumented parents.
Many of these immigrants live in blue states, to be sure, and the anticipated drop in immigrant census participation also could skew the drawing of political boundaries further in Republicans’ favor. This is undoubtedly what makes the plan so appealing to team Trump.
But plenty of red states, including Arizona, Florida, and Texas, have rapidly growing immigrant populations. These states stand to lose not only congressional seats in the event of an undercount, but billions in federal highway, health care, and education dollars. Some $700 billion in federal funds is doled out on the basis of population. Businesses, too, make decisions on where to locate or expand based on census data, so an undercount would likely shrink jobs, investments, and tax revenues in states controlled by Republicans as well as Democrats.
That helps explain why census accuracy has traditionally been a bipartisan issue, and why a half-dozen past census directors from both parties have raised alarms about the Commerce Department’s plan. The Justice Department's claim that the census must ask about citizenship to ensure proper enforcement of the Voting Rights Act is laughable on its face, given that Attorney General Jeff Sessions hasn't filed a single action to protect voting rights while in office. The bipartisan Census Scientific Advisory Committee also opposes the citizenship question, citing lower accuracy and higher cost.
The explanation offered by Commerce Secretary Wilbur Ross Jr. is equally ludicrous.
Ross claims that there is no “definitive, empirical support” for the idea that census participation would drop if respondents were asked about citizenship. Yet as the recent lawsuit filed by New York Attorney General Eric Schneiderman points out, the Census Bureau itself has testified repeatedly that asking about citizenship would jeopardize the accuracy of the population count. Schneiderman’s suit was filed on behalf of 17 states, the District of Columbia, six cities, and the U.S. Conference of Mayors.
The one saving grace to the whole census debacle is that the hundreds of scientists, business leaders, population experts, state and local officials, and civil rights advocates who oppose the citizenship question still have time to set things right. The Census Bureau’s actual count won’t start until April 1, 2020. And as a practical matter, no one expects census questionnaires to be printed before the spring of 2019.
That leaves a meaningful window for Commerce to respond to mounting public pressure, for the courts to step in, or for Congress to take action. There's little reason to think that Republicans on Capitol Hill will come to their senses, though the potential loss of highway and other federal funds may prompt some of them to take notice.
But there is, of course, a midterm election scheduled between now and next spring. Democrats may or may not prevail, but if they do, Maloney will be ready. The administration's disastrous handling of the census gives Democrats yet another compelling argument for why voters should put them back in charge.
