It appears another Trump administration decision will wind up in the Supreme Court because administration opponents went judge-shopping.
In this case, it’s the question of citizenship that administration officials had wanted as part of the 2020 census.
The administration decided to add the question at the request of the Justice Department, which said it needed more precise information to enforce voting laws better.
“[Department of Commerce] Secretary [Wilbur] Ross, the only person with legal authority over the census, reasonably decided to reinstate a citizenship question on the 2020 census in response to the Department of Justice’s request for better citizenship data, to protect voters against racial discrimination,” Justice Department spokeswoman Kelly Laco said in a statement. “Our government is legally entitled to include a citizenship question on the census and people in the United States have a legal obligation to answer. Reinstating the citizenship question ultimately protects the right to vote and helps ensure free and fair elections for all Americans.”
Supporters of noncitizens don’t want an exact census count because they fear it would reduce the amount of federal aid that might flow the way of states with large numbers of noncitizens and might dilute congressional representation of the states with a lot of noncitizens.
Even the jurist who ruled against the Trump administration, Judge Jesse M. Furman of the U.S. District Court for the Southern District of New York, an appointee of the more open borders advocate Barack Obama, said there is nothing inherently wrong with asking about citizenship on the census. In fact, the very question was standard on census forms through 1950 and on the long form of the census for years after that. Not only that, but the question is still asked on the American Community Survey, a yearly questionnaire sent to some 3.5 million Americans that helps determine how more than $675 billion in federal and state funds are distributed annually.
No, the judge decided such a question might frighten people such as Hispanics, illegal immigrants and others who don’t want their status known from filling out their census forms. He opined that more than 5 percent of U.S. residents might refuse to fill out their forms if the question were part of the census.
In other words, Furman seems to believe it is more important for the Commerce Department to have incomplete or inaccurate census information than to have people who are in the country illegally fill out the forms.
Either way, it seems to us, the country is not going to get a full accounting of who all is here.
Furman, in his ruling, said the decision to add back the citizenship question was not, as immigrant rights groups claimed, motivated by racism or other diabolical methods. But he said Ross ignored expert advice and dispensed with checks – such as “pretesting” – designed to make sure citizenship questions wouldn’t keep people from filling out the forms. If he wants the question in the census, the judge said, he’ll have to start the process all over again.
That made us wonder how you cloak a citizenship question to make it more comfortable. One, after all, is either a citizen, or one is not.
Perhaps:
“If you aren’t a citizen, not that there’s anything wrong with that, … ” or “If you’re not a citizen, pretend for a moment you are and answer the following … ” or “You may be breaking the law by being in the country, but we still want to know if … .”
Both sides in the debate understand Furman’s ruling won’t be the last word on the subject, and appeals of Furman’s decision are seen as likely.
Indeed, Attorney General nominee William P. Barr, testifying before the Senate in his nomination hearing, said he expects the department will continue to defend the question as lawful.
In addition, the Supreme Court already is considering a part of the case dealing with whether Furman was correct in ordering Ross to testify.
Steven Camarota, director of research for the Center for Immigration Studies, told the Washington Examiner the decision may fare better in the Supreme Court. In lower courts, opponents of any Trump decision will continue to look for Democratic judges to rule against him, he said.
“There is almost no administrative action that the administration can take at this point that won’t be struck down in the courts,” he said. “I don’t think that the ability of activist groups that judge shop is an indication of how the Supreme Court will eventually rule.”
More and more, we fear, decisions made by administrations of both political parties are going to wind up climbing the judicial ladder looking for a more favorable solution. But this is not the way our Founding Fathers envisioned government working – not by a long shot.