What the Constitution says about the census
The census is one of those rare parts of American life that is actually mandated by the Constitution, right at the top. In the 230 or so years since the Constitution was written, social science has developed sophisticated ways to estimate populations without literally counting every single person. But the Constitution still requires an вЂњactual enumerationвЂќ to determine how many members of Congress each state will get, so thatвЂ™s what the census does:
As the Supreme Court has ruled, that means the census canвЂ™t use any statistical modeling or estimation to fill in the gaps if itвЂ™s worried that not enough people have turned in their forms. But the Census Bureau collects a lot of data that goes beyond the basic mandatory every-10-year count вЂ” information that then gets used for congressional funding allotments, as the basis for other federal and academic research, in carving up congressional districts within a state, and in deciding the total number of Congress members the state gets. And for all those purposes, Congress, in 1976, amended the Census Act to encourage the government to use demographic sampling to collect data.
For a while, the government collected part of that data at the same time as the census: Five out of every six households on the governmentвЂ™s massive census list got the basic вЂњshort-formвЂќ version of the census, and the sixth got a вЂњlong-formвЂќ version that asked them extra questions about the people living in their household. After 1950, the question about citizenship became part of the вЂњlong-formвЂќ census, so only a minority of census respondents got asked about it.
After the 2000 census, the government decided to get rid of the long-form census and replace it with the smaller but more frequent American Community Survey. The ACS only goes out to 2.5 percent of Americans вЂ” way fewer than the long-form census вЂ” but itвЂ™s conducted every year. At present, thatвЂ™s our primary source of official information about how many citizens live in the US.
This explains why the Trump administration is defending its decision to add a citizenship question to the 2020 census by saying there has been a citizenship question as part of every recent census except the 2010 one. It also explains why critics are saying the Trump administration is reinstating something that hasnвЂ™t existed since 1950.
TheyвЂ™re both right.
The Trump administration is correct in the technical sense: 2010 was the only year that no survey conducted as part of the US census asked about citizenship. But the critics are also correct: Citizenship hasnвЂ™t been a question on the mandatory census survey since 1950.
The real point of contention, therefore, is whether the American Community Survey вЂ” the sampling-based, more frequent survey that canвЂ™t be used for allotting seats in Congress вЂ” gives the government all the information it needs about citizenship, or whether it needs to have mandatory, enumerated official census data.
The Trump administration said they wanted to use census citizenship data to вЂњbetter enforceвЂќ the Voting Rights Act …
No one is disputing that the Trump administration has the authority to add questions to the census. What was at issue was the way the Trump administration went about making the decision.
Ostensibly, the Department of Commerce (which is responsible for administering the census) added the question at the request of the Department of Justice, headed by then-Attorney General Jeff Sessions. The DOJвЂ™s reasoning was that to appropriately enforce the Voting Rights Act, the DOJ needs to know where eligible voters, and specifically eligible voters of color, live вЂ” so they have to be able to distinguish citizens from noncitizens.
Many federal circuit courts have decided that in Voting Rights Act suits, allegations that a state has diluted the minority vote have to be backed up with stats on the citizen voting-age population, not just the total population. Right now, the federal government and voting rights advocates have to rely on ACS data instead of census data to make that case.
There are good arguments that the ACS isnвЂ™t a great basis for Voting Rights Act suits. For one thing, it offers multiple estimates at once (one-year, two-year, and five-year averages); for another thing, because it keeps generating new data throughout the decade, it doesnвЂ™t mesh with the decennial redistricting process as well as the decennial census does.
But critics of the Trump administration were immediately skeptical that those good reasons were the Trump administrationвЂ™s reasons. When the states sued, they got internal Commerce Department documents and emails that proved the skeptics were entirely right.
… but the lawsuit basically revealed that to be a pretext
While itвЂ™s generally assumed that the Trump administration has the upper hand with the current Supreme Court (with a five-justice conservative majority, two of whom were appointed by Trump), the administration has an uphill battle in this case. The Supreme Court isnвЂ™t supposed to challenge вЂњfindings of fact.вЂќ And the вЂњfindings of factвЂќ in District Judge Jesse M. FurmanвЂ™s ruling were pretty damning.
Unlike most of the defeats Trump has suffered in court, which have started as preliminary rulings that seek to stop a policy while a court case is ongoing, this ruling comes after a full trial and the
FurmanвЂ™s ruling is not about the constitutionality of the citizenship question. Without testimony from Ross himself, Furman didnвЂ™t rule on whether Ross was motivated by вЂњanimusвЂќ in his decision-making. Instead, the case against the census question rests on the Administrative Procedure Act, which sets out how agencies are supposed to make policy that isnвЂ™t вЂњarbitrary and capricious.вЂќ
Officially, the request to add a citizenship question to the census came from the Department of Justice in December 2017. But emails uncovered in the lawsuit showed that for months, Ross himself had already been asking around about adding a citizenship question вЂ” and Commerce Department officials had tried to get other agencies involved to вЂњclear certain legal thresholds.вЂќ
The Trump administrationвЂ™s lawyers arenвЂ™t arguing that this was legal вЂ” indeed, they conceded that if the addition of the citizenship question was based on a pretext, it should be struck down.
FurmanвЂ™s 277-page ruling also includes extensive findings of fact that Ross was warned about potential downsides of adding a new question вЂ” most notably, concerns that it would warp the census results by discouraging noncitizens from responding вЂ” and that he either ignored that evidence or claimed it didnвЂ™t exist.
Democrats worry the real purpose of having the census count citizens is to change how seats in Congress are allocated
There is one respect in which the Trump administration cares a lot about voting вЂ” it cares a lot about the complete and utter fiction that large numbers of noncitizens are able to vote. The DOJ letter on the citizenship question plays into that belief, quoting a court decision that says вЂњthe dignity and very concept of citizenship are diluted if noncitizens are allowed to vote.вЂќ
The census doesnвЂ™t determine who gets to vote. But it does determine how votes count. And voting rights advocates fear that generating citizenship data from the вЂњactual enumerationвЂќ of the census would give the federal government the information it needed to apportion congressional seats based on how many citizens lived in each state, rather than how many people вЂ” something that would likely hurt Texas and California.
It could also encourage state efforts to draw congressional districts based on citizen population. The Supreme Court has routinely ruled that states are allowed to use total population when drawing districts вЂ” including in a 2016 decision where the Court sided 8-0 with TexasвЂ™s use of total population вЂ” but it hasnвЂ™t explicitly said that they have to.
A conservative state government that wanted to allocate its representatives based only on people who could vote would already be able to do that using ACS data (because redistricting, unlike reapportionment, is allowed to use sampled data). But it would be that much easier if that data were part of the essential census package.
There is, however, one big problem. Demographers studying the ACS data keep noticing that people often mark themselves as citizens when thereвЂ™s pretty much no way they could be citizens вЂ” theyвЂ™ve only lived in the US for a year, for example.
According to Jennifer Van Hook, a professor of sociology and demography at Penn State University, demographic groups that have large shares of unauthorized immigrants are the ones most likely to inaccurately mark themselves as citizens: Mexican men of working age, for example.
Maybe they donвЂ™t understand the question вЂ” or maybe itвЂ™s because theyвЂ™re worried about what will happen if they tell the truth.
Immigrants (wrongly) worry the government will use census data to track them down
In an environment where ICE is routinely referred to as the вЂњGestapo,вЂќ the knee-jerk first assumption for many people is that the Trump administration would use citizenship census data for immigration enforcement вЂ” going door to door, or something, to all the people who said they had noncitizens in their household.
That is very much not the concern that elected Democrats, demographers, or voting rights and immigrant advocates are voicing.
The assumption is wrong: Federal law is pretty darn explicit that the Census Bureau doesnвЂ™t get to share information about individuals with other federal agencies. The laws have been circumvented before: During World War II, the Census Bureau helped the government round up Americans of Japanese ancestry into internment camps by telling the government how many Japanese Americans were in a given area (thus avoiding telling them about individuals per se). But experts generally believe that the legal restrictions, which have been strengthened since then, wouldnвЂ™t allow that sort of thing