—, 2020 census; Census Bureau; citizenship question, Jacobin contributor: Calls for NBC not to air Trump townhall won't succeed in 'deplatforming' the president, How social media is tracking the coronavirus epidemic in real time, Conservative group head: Trump loss would not vindicate 'the old GOP formula', Inspired by #MeToo, some men are trying to redefine masculinity. If that is the ultimate goal of this census, it needs to be conducted in a manner that permits everyone in the country to be counted. So the example I like to give is what if the 1984 Olympics in Los Angeles was actually the 1980 Olympics, and it was held during the summer when the census was being undertaken and there were hundreds and hundreds of thousands of people visiting from all over the world who happen to be in Los Angeles for a two or three week period when the census was being conducted. An email to the US Department of Justice seeking comment on the ruling was not immediately returned. Courts have permanently blocked the Trump administration from adding a citizenship question to the 2020 census. His job is not in the first instance to facilitate data gathering by the DOJ for whatever reason. That's the sort of basis of the APA review. So Secretary Ross only had one reason, and it was the VRA. Jun. We're going to have to send census workers to knock on the door and take the count because the form wasn't filled out, but the Census Bureau over the decades has gotten very good at approximating 100% comprehensive review on the enumeration even when people are boycotting the census, or even when people are not being reached because they're in rural areas that the mail's not getting to, or whatever. Why have the tables seemed to turn? The Supreme Court presently has four liberal justices and four conservative justices, with Chief Justice John Roberts increasingly becoming the swing vote, as he did on the individual mandate for ObamaCare, federal funding for Planned Parenthood, and his demurral against the citizenship count on the census form. Please rate, review, and subscribe to We The People on Apple podcasts and recommend the show to friends, colleagues, or anyone around the world who is hungry for constitutional education and debate, and remember always, dear We The People friends, that the National Constitution Center is a private nonprofit. Wolf: [00:06:49] Yeah, I think it's an important qualification here is that when Secretary Ross says that he's reinstating the citizenship question, that statement is misleading at best for a few reasons. The real issue here, and why I think people, why this has become such a partisan fight, both at the court and in who brought the complaints. Secretary Ross in this sort of situation is being advised on what to do on the basis of the best social science available to him, and what that social science showed was that asking a citizenship question was going to dilute the count. Here, we have someone defying law, defying logic, defying reason, defying practice to pursue an end, we don't ultimately know the reason, but there are strong reasons to suspect they're purely political. A court ruling that the question was added with discriminatory intent could also keep it off the census form. They are out in the public. But the general concept here of things like reporting what you're going to ask to Congress in a timely manner and requiring administrative records to be used before we ask directly through the census instrument any kind of question are all things that are oriented towards constraining the ability of the census to be politicized. Second, it requires that the secretary propose the subject of census questions to Congress three years before the census takes place, and third, it requires a transparent disclosure of reasons rather than pretextual reasons. But it doesn’t remotely follow that asking it is unconstitutional. The Enumeration Clause in Article 1, Section 2 says there should be an actual enumeration, quote, "In such manner as they, Congress, shall by law direct." So asking a citizenship question helps us identify further that issue. 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. They said under the Department of Justice's view of the law, the Administrative Procedure Act would prevent them from getting this critical evidence. 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. He also created this VRA rationale that you don't actually have to go outside the administrative record to see was just a front for some deeper reason that's never been revealed. Check out the polls we’ve been collecting ahead of the 2020 elections, including all the Democratic primary polls. Prior Department of Justice officials from way back into the Bush administration, so not the immediately preceding Obama administration have testified and stated in public commentary and in briefs that in fact, citizenship information would be a very useful in Voting Rights Act disputes. Post was not sent - check your email addresses! Is that an accurate description of the requirements of the Administrative Procedure Act, and how does that feed into this case? It's why even Justice Ginsburg rejected a notion to force Secretary Ross to be deposed during the litigation. Constitution tells us that Congress is supposed to conduct an actual enumeration. I think the court came down pretty clearly that on an Administrative Procedure Act review, we look at what the record is. To inveigh against the practice now as a violation of the Constitution — as, in former attorney general Eric Holder’s description, “, Is the administration trying deliberately to depress the response rate from undocumented immigrants? Unfortunately, that degradation has spread well beyond immigration politics. In his letter, he did not raise the possibility of for instance facilitating redistricting on the basis of non-citizens only. Secretary Ross enters that room within those boundaries. The Becket Fund for Religious Liberty filed a brief expressing concern that free exercise claimants should be able to use the discovery process to examine the real motives behind administrative decisions. Just as the Census Bureau doesn’t delve into politics, religion, or sexual orientation, it shouldn’t delve into, question about citizenship on the 2020 Census, a direct attack on our representative democracy. All of these things were before Secretary Ross. Wolf: [00:29:59] Well, the interesting thing about that question of agency deference being raised is that this is also an issue that in some form or another is also in front of the court in a case that had heard earlier this year about the Auer doctrine, which is a doctrine relating to an administrative law in deference to agencies. The development of the Census Bureau over the course of the 20th century, once it was introduced, was oriented very much towards developing a rigorous social scientific approach to the enumeration, to lower costs, and raise accuracy. It shouldn’t ask if they have a mortgage. 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. Respondents were queried more explicitly about citizenship status in 1870, and the question returned in every census from 1890 through 1950. His job is to not, in the first instance, to facilitate redistricting. There isn’t any compelling reason to revert to a citizenship question in the decennial census. Research was provided by Lana Ulrich, Kelly McGovern, and Jackie McDermott. Tell us about your estimation of how the Justices were confronting the question of motive. Eastman: [00:42:03] Well, and I noticed Tom didn't cite the statute that I cited earlier. Rosen: [00:29:30] Tom, I'm just going to take one more beat on why they seem to dividing on partisan lines. 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. “By including a citizenship question which will diminish response rates, the census will not be able to fulfill its constitutional duty to count everyone.”. Last month, the question’s challengers submitted new evidence from the files of a deceased Republican redistricting expert who wrote in a 2015 study that adding the citizenship question could entrench GOP power by allowing state legislators to redistrict using only citizens as the population base, rather than the total population.

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