Legal scholars David B. Rivkin and Gibson B. The lawsuit against the Trump administration, filed in U.S. District Court for the District of Maryland, names Commerce Secretary Wilbur Ross, Census Bureau Director Ron Jarmin, and their respective agencies as defendants. Now we’re taking our fight to the courts. He was previously a member of the Supreme Court & Appellate group at Mayer Brown, and he recently published a Critical History of the United States Census and Citizenship Questions in the Georgetown Law Journal, which I recommend to We The People listeners. The, In short, the census has been enumerating citizens for nearly as long as it has been enumerating residents.

That’s not the function of the federal census. I think we see that playing out in the way the case is trying to be structured. All we have is bureaucrats in the Census Bureau saying if you ask this question, some people won't respond to our initial survey. Who lives here, and how old are they? window.NREUM||(NREUM={});{"beacon":"","licenseKey":"f6169b8cc4","applicationID":"100041457","transactionName":"bwcDZBYEW0ZVVhEMXVZNIFMQDFpbG0YMC1VUB0xWEABqU1FUERBAXRE=","queueTime":0,"applicationTime":441,"atts":"Q0AUEl4eSBkWVEdfSUUf","errorBeacon":"","agent":""}, Amelia Thomson-DeVeaux is a senior writer for FiveThirtyEight.

Rosen: [00:51:55] Today's show was engineered by Greg Scheckler and produced by Jackie McDermott. It was filed in response to an order Ross issued in late March, just days before the statutory April 1 deadline for finalizing the 2020 Census questionnaire. As a point of fact, and this is something that is developed at much greater detail in my recent publication with Georgetown, the citizenship questions have come on and off the long form, excuse me, came on and off the form that was used to conduct the enumeration between 1820, which was the first time a naturalization status question was asked, and 1950. The long form was ultimately replaced by the ACS. Opponents of the citizenship question had argued that the Trump administration violated the law by adding it over the objections of Census Bureau researchers who said that it was likely to discourage households with noncitizens from responding to the decennial count. Rosen: [00:16:10] Thanks so much for laying out the Administrative Procedure Act challenge and the Enumeration Act challenge. But this issue has been brewing in a partisan divide way for much longer than President Trump was on the scene. Does it matter how and why the question is added? Therefore, when he's exercising his discretion, that discretion is analyzed in light of what he's ultimately supposed to be exercising that discretion for. I mean, ultimately, they are professional survey takers who have a deep, social scientific pedigree. There may be any number of different reasons why Secretary Ross really wanted to add the question. So what the bureau decided to do after 1950 was separate the enumeration function from the data gathering function, so it created what is now known as the short form census, which is just a small number of questions. What the court held there was that the constitution doesn't require that there be citizen based accounting for reapportionment, but it didn't foreclose that. California and several cities in the state had sued over the citizenship question. Rosen: [00:45:07] Well, it is time for closing arguments in this rich and fascinating discussion, and the first one is to you, Tom. They weren't necessarily all pressed by the same Justices depending on who was speaking, but everyone was questioned hard. So what we have is the removal of the citizenship question entirely from the census forms for the first time in 2010. Mexican American Legal Defense and Educational Fund, Copyright 2020 MALDEF | Mexican American Legal Defense and Educational Fund, Designed by Elegant Themes | Powered by WordPress, MALDEF Property Management Corporation (MPMC), MALDEF RECOMMENDATIONS FOR CALIFORNIA BALLOT MEASURES. John Eastman is the Henry Salvatori Professor of Law & Community Service at Chapman University’s Fowler School of Law. The APA may seem as if it is kind of an obscure or kind of deep in the weeds technical, bureaucratic regulation, but it exists to serve a couple of important, key purposes, chief among them when Congress, who are our delegated representatives, in term delegates authority to make rules that govern our lives, the agencies, we expect the agencies to act in ways that are reasoned, reasonable, and transparent among other things in addition to adhering to other laws. Their count is external to Section 2. If Becerra and the other AGs are genuinely concerned about keeping the census within proper bounds, they should be pressing to exclude more than the question about citizenship. A change in administration from one party to another, a lot of the careerists holding over from the prior administration have a different view than the current administration does.

The fate of the question now hinges in large part on when the census forms actually need to be printed. They have delegated to the Secretary of Commerce the authority to conduct the census in such form and content as he may determine and quote, "To obtain such other census information as necessary.". Rosen: [00:01:16] Thank you. Which means that Secretary Ross doesn't have a blank check to define what his job is as the head of the Commerce Department in his stewardship of the census. It would be absurd to say that those people ought to be included in the census of the population. Tom Wolf is Counsel with the Democracy Program at the Brennan Center, where his work focuses on redistricting and the census. Eastman: [00:42:03] Well, and I noticed Tom didn't cite the statute that I cited earlier. A question asking Americans whether they’re citizens won’t go on the 2020 census form — for now. I also think it's extremely important for us to get a better handle on how many immigrants we have in this country. The way in which the question was phrased, the purpose of the question changed substantially over this period of time, and another important thing to keep in mind is that what Secretary Ross wants to do is ask a question that will elicit citizenship information from every single person in the country. In fact, under the APA, maybe so much deference that we ought not to even be considering this case. So the notion here is that ultimately, what we were supposed to do is to value an actual enumeration and pursue it in a rigorous, fact based, reasoned way to eliminate wobble in the count that can have massive political consequences just based on the political wins of the time. Maybe not. The district court concluded that the citizenship question would reduce non-citizen response rate by 5.1%. at I don't have any indication whatsoever that the 2020 census and the Census Bureau's efforts in that regard will be any different than it has been in the past. As such, there is no question of “Founders’ intent.” If the document’s authors had a constitutional issue with asking about citizenship status on the census, they would have objected to it.

The National Constitution Center is a non-partisan, non-profit chartered by Congress to increase awareness and understanding of the Constitution among the American people. That’s all the Constitution requires, and it’s enough. If the court wants to strike down what the Secretary has done here because the statute itself is unconstitutionally delegating lawmaking power from Congress to the executive and revive the non-delegation doctrine as a separation of powers, important doctrine, then I'd be all for that. To inveigh against the practice now as a violation of the Constitution — as, in former attorney general Eric Holder’s description, “a direct attack on our representative democracy” — is overwrought hyperbole, red meat for the progressive base, not a serious legal argument. Tom Wolf: [00:01:40] Thanks for having me here. That was the example at the time. We've had issues with that in the past. A policy decision can be misguided, as this one is, without being unlawful. Census Bureau (30) The census questionnaire shouldn’t ask whether respondents are of Hispanic origin. But let's get over that hurdle. Wolf: [00:37:27] I think we have to return to first principles here. With anti-immigrant rhetoric from the Trump administration at a fever pitch, civil rights and voting rights experts have repeatedly expressed concerns that adding an unnecessary citizenship question will stoke fears that the data will be used to target immigrant communities and cause non-citizens to shy away from Census questionnaires. Get the National Constitution Center’s weekly roundup of constitutional news and debate. The Constitution requires only that “the whole number of persons in each State” be counted every decade for purposes of congressional apportionment. Commerce Secretary Wilbur Ross had claimed that the Justice Department needed data from the question to help enforce the Voting Rights Act, but three federal judges have ruled that Ross had already decided to add the question — and that he pressured the Justice Department to provide him with a reason. We rely on the generosity, engagement, and passion of people across the country like you who are inspired by our non-partisan mission of constitutional education and debate. Jeff Jacoby can be reached at That’s not the function of the federal census. There was no evidence on the other side suggesting that adding the question would not lower response rates or even improve response rates. Up until 1950, it was on the form sent to every house, save, as Tom pointed out earlier, some decades back in the mid-19th century. A case involving the question in Maryland was recently reopened to explore whether this evidence suggests that the Trump administration violated Hispanics’ civil rights by diluting their political power. If there is any undercount that would result, and again, I'll go back. Communities that have long been undercounted, including communities that include non-citizens would only be undercounted further as a results of this process. Compliance is impossible without counting how many citizens live in each state.”. They do it with homeless people. Eastman: [00:48:21] Well, Secretary Ross has proposed to ask about citizenship in a way that the census bureau has done, not every single decade, but most of the decades from 1820 up and through 2000.