If you want to understand why the Trump administration is scrambling at the last minute to include a citizenship question in the 2020 census, you have to look beyond the lawsuits filed by Democrats anxious about the question's political impact. The only reason that litigation produced a June 27 Supreme Court decision blocking the question was the blatant, bumbling mendacity of Commerce Secretary Wilbur Ross, whose rationale for the change Chief Justice John Roberts and four of his colleagues deemed "contrived" and "pretextual."
Whether that conclusion should make a legal difference is a matter of dispute; four justices thought it shouldn't. But if Ross, whose department includes the Census Bureau, had told the truth -- or even if he had been better at lying -- census forms with the citizenship question would already be rolling off the presses.
The evidence that Ross' official explanation -- that the Justice Department needed better data to enforce the Voting Rights Act -- was not the real reason for his decision persuaded three federal judges as well as a majority of the Supreme Court. It is not hard to see why.
"In the Secretary's telling," the court said, "Commerce was simply acting on a routine data request from another agency. Yet the materials before us indicate that Commerce went to great lengths to elicit the request from DOJ (or any other willing agency)."
That record shows Ross "began taking steps to reinstate a citizenship question about a week into his tenure, but it contains no hint that he was considering VRA enforcement in connection with that project." After making the decision for reasons he has yet to reveal, Ross spent months trying to gin up a respectable excuse.
Under Ross' instructions, his policy director "initially attempted to elicit requests for citizenship data from the Department of Homeland Security and DOJ's Executive Office for Immigration Review, neither of which is responsible for enforcing the VRA," the court said. "After those attempts failed, he asked Commerce staff to look into whether the Secretary could reinstate the question without receiving a request from another agency."
The VRA rationale originated not with the Justice Department, as Ross repeatedly claimed, but with Commerce Department staffers trying to satisfy their boss's demands. The DOJ was unwilling to write this cover story until Ross persuaded the attorney general to intervene, and even then, "the record suggests that DOJ's interest was directed more to helping the Commerce Department than to securing the data."
The DOJ letter requesting a citizenship question was not written until nine months after Ross had made his decision, and it "drew heavily on contributions from Commerce staff and advisors." Furthermore, "After sending the letter, DOJ declined the Census Bureau's offer to discuss alternative ways to meet DOJ's stated need for improved citizenship data," reinforcing the impression that the VRA justification was phony.
Why does it matter? "In order to permit meaningful judicial review, an agency must 'disclose the basis' of its action," the court said. "The reasoned explanation requirement of administrative law ... is meant to ensure that agencies offer genuine justifications for important decisions, reasons that can be scrutinized by courts and the interested public."
The court left open the possibility that the Commerce Department could try again, this time without lying. It noted that the commerce secretary has wide discretion to determine the contents of the census and that review of such decisions is "deferential."
The Trump administration now faces two problems. First, while there are plenty of plausible nonpartisan reasons for asking about the legal status of U.S. residents in the census, coming up with one at this late date will smack of desperation.
Second, the administration has insisted all along that it needed to start printing forms by last week to keep the census on schedule, which is why its appeal in this case went straight to the Supreme Court. The administration has weaved a tangled web for itself that will be hard to escape.
Jacob Sullum is a senior editor at Reason magazine. Follow him on Twitter: @JacobSullum.
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