Arguing that the need is urgent for a rapid Supreme Court review of the legality of adding a citizenship question to the 2020 census, the Trump Administration on Friday afternoon asked the Justices to hear and decide that issue before they finish the current term, probably in late June. The Court might even consider holding a special session in May for the hearing, if necessary to assure a prompt decision, the filing suggested. Normally, a term’s hearings end in April.
The Census Bureau needs to know by the end of June, the Court was told, what can be put on the census questionnaire that will go to every household in America next year. Thus, the new appeal said, “as a practical matter,” the only way to get the citizenship question dispute resolved in time is for the Supreme Court to do it, bypassing the normal route through a federal appeals court.
The appeal argued that a federal trial judge in New York City, in barring the citizenship question, took the unprecedented step of second-guessing the scope of the census questionnaire that has been planned by the one official to whom Congress assigned that task – the Secretary of Commerce, who oversees the Census Bureau.
“To the government’s knowledge, this is the first time the judiciary has ever dictated the contents of the decennial census questionnaire,” the new filing said in challenging the ruling earlier this month by U.S. District Judge Jesse L. Furman.
“In light of the immense nationwide importance of the decennial census, if the district court’s ruling is to stand, it should be this Court that reviews it,” not a middle-level federal appeals court, the document argued.
The core issue that the Administration put before the Justices is whether Commerce Secretary Wilbur L. Ross acted illegally when he decided to ask everyone living in America next year about their citizenship. Ross and other Administration officials said the data was needed in enforcing federal voting rights laws, but challengers to inclusion of the question contend that Ross acted out of a discriminatory desire to reduce voting by ethnics, specifically Hispanics.
The Constitution itself requires that every person in the country at the time of the census be counted, even those who are in the country illegally. The population data produced by the census is used to allocate among the states the 435 seats in the U.S. House of Representatives, in drawing new election districts at every level of government, and in distribution of hundreds of billions of dollars in federal funds.
Those challenging an inquiry about citizenship have contended that adding the question will result in a significant under-count, because people in households where non-citizens may be living would not respond to the census for fear that those individuals could be deported. As a result, states and cities with sizeable populations of Hispanics and non-citizens would lose out, and some major states could lose a seat in the House, according to the challengers.
While Judge Furman upheld a series of challenges under federal census law and federal administrative law, he ruled in a separate part of his decision that the state and local governments and the civil rights groups that contested the citizenship question’s inclusion had not proved their claim that Ross’s real reason for adding the question was unconstitutional racial bias.
Besides asking the Court to allow the citizenship question to be asked, the Administration also urged the Justices to rule that Judge Furman had been wrong in allowing the challengers to bring into their case a significant amount of evidence that went beyond the official record that Secretary Ross and his aides compiled in reaching the decision to ask about citizenship. The judge insisted, in his final ruling, that he had not gone beyond the official record in ruling against the question, but the new appeal argued that that is still a live issue about the proper scope of judicial review of government agency actions.
One of the extra items of evidence that the challengers wanted to have available for their case was a session at which they would question Secretary Ross personally and under oath about his motive for adding the citizenship inquiry. However, the Supreme Court blocked that in an earlier order, and both Judge Furman and the challengers have since dropped the idea.
The Supreme Court has already picked all of the cases that it expects to decide during the remaining months of the current term, but the Administration appeal asked the Justices to make an exception and to take on directly the census dispute because of its importance.
If the Court were to agree to step in, and did so at either its scheduled private conferences on February 15 or February 22, the Administration filing said, it should then order a faster-than-usual schedule for the filing of written legal briefs in time for a hearing in April, or no later than in a special sitting in May.
The document urged the Court to adopt a proposed schedule that would make it possible to hold a hearing on April 24, the last day now set for hearings this term, or else to choose an alternative proposal that would put the hearing in May.
If the Court does plan to consider the new appeal at one of the February conferences, it probably will have to shorten the time for the challengers to file their first response to the appeal. Normally, they would have 30 days to do that, and then the government would get time to submit a reply before the Justices considered whether to grant review.
