A federal judge ruled Tuesday that the Trump administration cannot ask U.S. residents if they are citizens on the 2020 census, setting the stage for a showdown at the Supreme Court. The suit, brought by a coalition of states, cities and immigrant rights groups, contends that the administration added the question with the intention of discouraging immigrants from responding.
Judge Jesse Furman called Commerce Secretary Wilbur Ross’ decision to add the question “arbitrary and capricious,” adding that Ross “failed to consider several important aspects of the problem; alternately ignored, cherry-picked, or badly misconstrued the evidence in the record before him; acted irrationally both in light of that evidence and his own stated decisional criteria; and failed to justify significant departures from past policies and practices.”
Furman found proof that Ross committed a “veritable smorgasbord of classic, clear-cut” violations of the Administrative Procedure Act, and that he lied to Congress, but he did not find sufficient evidence that Ross was “motivated by invidious discrimination.”
The citizenship question has been a top priority of Ross since he was appointed Commerce Secretary in 2017. It remained high on Ross’ agenda despite warnings from his own deputies that adding it to the census would not only be prohibitively expensive, but would discourage immigrants from participating, leading to an undercounting of some of the country’s most vulnerable residents.
The census, conducted every 10 years, helps guide how hundreds of billions of dollars in federal funding is disbursed, as well as how seats in the House of Representatives and votes in the electoral college are apportioned.
As Rolling Stone’s Tim Dickinson reported in a recent feature on Ross’ efforts, former census officials believe the citizenship question could produce an undercount of as many as 6.5 million people, mostly from Hispanic, immigrant and foreign-born populations. Hawaii Senator Brian Schatz put it plainly: “They’re trying to get a lower count in communities with black and brown people so that Republicans have more representatives in the U.S. House.”
In January 2018, the Census Bureau’s chief scientist and associate director for research and methodology recommended against adding the question, writing that doing so “is very costly, harms the census count, and would use substantially less accurate citizenship status data than are available from administrative sources.” Adding the question would cost an estimated $27.5 million, according to the memo.
Ross previously testified that he sought to add the question in response “solely to the Department of Justice’s request.” But on Tuesday, Judge Furman found that Ross, himself, approached Attorney General Jeff Sessions, “believing they needed another agency to request and justify a need for the question.”
Ross also previously testified to Congress he was “not aware” of anyone on his team having any discussions with the White House about adding the question. In fact, depositions, emails and other evidence presented indicated that Ross discussed adding the question with both former Trump strategist Steve Bannon and with ex-Kansas Secretary of State Kris Kobach. (In an email to Ross, Kobach advised that without the citizenship question, the census would be left with the “the problem that aliens who do not actually ‘reside’ in the United States are still counted for congressional apportionment purposes.”)
The Trump administration is now expected to appeal the case to the Supreme Court. In the meantime, House Oversight Committee Chair Elijah Cummings has promised a full investigation. Cummings told Rolling Stone in December, he intends to “hold Secretary Ross accountable for his actions and his previous testimony to Congress.”