On Tuesday, the Supreme Court deliberates its most high-profile case involving Trump administration policy since it weighed in on the travel ban last year. Once again, the case centers on the issue of immigration—specifically, if the Census Bureau can ask people living in the United States about their citizenship, starting next year. The Supreme Court began hearing oral arguments in Department of Commerce v. New York at 10 a.m., with deliberations set to last 80 minutes instead of the typical 60 minutes. Immigrant rights groups represented by the American Civil Liberties Union, New York Civil Liberties Union and the law firm Arnold & Porter challenged the Trump administration in a three-week hearing in New York, presenting evidence that the citizenship question was not necessary and would lower Census participation in immigrant communities. A federal court in January rejected the Trump administration's initiative to add the citizenship question, and the administration appealed that ruling, bringing the case before the Supreme Court. ACLU's voting rights project director Dale Ho will provide an oral argument before the Supreme Court. "This case isn't about a line on a form," Ho stated on Monday. "It's about whether everyone in America counts." It's on. See you in Court. https://t.co/nO6bu3Bz45 — Dale Ho (@dale_e_ho) April 12, 2019 The groups have argued that lower participation in the census can change how congressional seats and federal funds are allocated. Some census experts found that if the citizenship question were added, it could reduce the U.S. population count by about 6.5 million people and result in an "under-count," according to the National Constitution Center. "That would cause some states—especially California—to lose some of their seats in the U.S. House of Representatives," the National Constitution Center reported. "A number of states will also lose some of their shares of more than $700 billion of federal funds that are distributed to the states each year." In arguing in favor of the citizenship question, Commerce Secretary Wilbur Ross has said that it would result in more accurate information about the U.S. population, that the Department of Justice needs it to protect minority voting rights, and that parts of the nation have already been subject to the question in past censuses. Ross has claimed that the request for the question to be included came from the Justice Department in order to enforce the Voting Rights Act. However, multiple judges have ruled that to be false, citing evidence that included documents showing that Ross had previously met with immigration hardliners Steve Bannon and Kris Kobach about the issue. The Supreme Court does not have much time to make a decision—the Census Bureau needs to know if the question can be added to the 2020 survey by the end of June.<doc-sep>The Trump administration wants the 2020 census, which will be distributed to all people living in the United States next spring, to ask, “Are you a citizen of the United States?” A group of blue states led by California and New York emphatically do not want a census citizenship question, because they’re worried it will make their residents less likely to return their census forms — and thus hurt their apportionment in Congress after the 2020 census results are tallied. On Tuesday at 10 am Eastern time, the Supreme Court is hearing oral arguments on who should prevail. Of course, it’s not that straightforward from the Court’s perspective. The census lawsuit — arguably the biggest case of this Supreme Court term — raises several levels of legal questions about how government agencies are allowed to make decisions, and how closely the courts (or anyone else) can question the decisions once they’re made. And the Court doesn’t have much time to figure out the answers. While most lawsuits work through lower courts for years before hitting the Supreme Court, this one was accelerated to the highest level barely three months after a federal judge in New York first ruled that the Trump administration could not ask about citizenship on the 2020 census. The unusual procedure is justified by the fact that it simply can’t wait. Shortly after the Court’s deadline to issue a ruling on the citizenship question — when the term ends in late June — final census forms will be sent to press. The Supreme Court’s word on the question, even more than usual, will be final. Has the census asked about citizenship before? The Trump administration claims that the citizenship question is standard, arguing that it’s been on every recent census except the 2010 census. Its critics claim that the citizenship question hasn’t been asked since 1950. They’re both right, in a sense. The Census Bureau collects a lot of data that goes beyond the basic mandatory every-10-year count — 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 while the government is prohibited from using sampling or modeling for the “actual enumeration” of how many people live in the United States, the Census Act actually encourages it to use demographic sampling to collect all this other 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 government’s massive census list got the basic “short-form” version of the census, and the sixth got a “long-form” version that asked them extra questions about the people living in their household. The citizenship question was on the standard “short-form” census through 1950. After 1950, it was moved to the “longform” census, so only a minority of census respondents got asked about it. After the 2000 census, the government decided to get rid of the longform census and replace it with the smaller but more frequent American Community Survey. The ACS only goes out to 2.5 percent of Americans — way fewer than the longform census — but it’s conducted every year. At present, that’s our primary source of official information about how many citizens live in the US. So the Trump administration is correct that the only decennial census that didn’t include any questions about citizenship was the 2010 census. But the critics are correct that not since 1950 has the government asked everyone in the United States to declare their citizenship status in order to participate in the constitutionally mandated decennial count. The central policy question, therefore, is whether the American Community Survey — the sampling-based, more frequent survey that can’t be used for allotting seats in Congress — gives the government all the information it needs about citizenship, or whether it needs to have mandatory, enumerated official census data. The administration, of course, argues it needs both. Its critics argue that asking about citizenship on the census even though it’s already in the American Community Survey violates a legal requirement not to ask census questions that the government already has sufficient data on. Why is the citizenship question controversial? There are two big problems with asking all census respondents about citizenship: the way the information could be used in future, and the impact it will have on the quality of the census itself. The biggest concern raised by voting rights advocates about information use is that the citizenship data could be used by state governments in drawing legislative districts. The census doesn’t determine who gets to vote, but it does determine how votes count. And voting rights advocates fear that generating citizenship data from the “actual enumeration” 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 — 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 — including in a 2016 decision where the Court sided 8-0 with Texas’s use of total population — but it hasn’t explicitly said 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. The more fundamental problem, though, is that people won’t respond to the census at all if citizenship is included. To be clear: The concern raised by voting rights advocates is not that noncitizens’ census data would be used to deport them. (For one thing, the question wouldn’t distinguish between legal and unauthorized immigrants.) It’s sort of the opposite: that people would be so worried about how their information would be used that they wouldn’t respond at all. Census Bureau experts were already concerned about Latinos being undercounted in the 2020 census. In 2017, a bureau researcher flagged to a census advisory committee that focus groups and field tests were having serious problems getting immigrants to complete the survey. During one field test, a respondent fled her home when she started getting worried about the questions. Another family moved abruptly after an interview with a census employee, and others halted the questions or deliberately lied. Typically, a researcher could address a problem like this by tweaking the statistical model: assuming that more Latinos lived in an area than turned in their census forms because of this dynamic. But because of the “enumeration” requirement, the census isn’t allowed to do any modeling. The count is the count. Why did the Trump administration add a citizenship question to the census? It depends on whether you take the administration at its word or not. 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. Officially, the request to add a citizenship question to the census came from the Department of Justice in December 2017. The DOJ’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 — and 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 isn’t a great basis for Voting Rights Act suits.<doc-sep>WASHINGTON – A deeply divided Supreme Court appeared almost certain Tuesday to allow the Trump administration to ask about citizenship in the 2020 census. In an expanded, 80-minute oral argument that exposed huge divisions among the justices, the court's conservatives didn't buy arguments that Commerce Secretary Wilbur Ross' plan was illegal or unconstitutional. They didn't question his motives or reasoning despite three lower court rulings against him. Their ruling would clear the way for all households to be asked about citizenship for the first time since 1950. A reduced response rate among 22 million noncitizens would tilt the allocation of House seats and about $650 billion in federal funds from Democratic to Republican states and localities. "Citizen voting age population is the critical element in voting rights enforcement, and this is getting citizen information," Chief Justice John Roberts said. The high court must decide whether Ross has ample reason to ask about citizenship, followed acceptable procedures and acted within the bounds of the Constitution. A decision is likely by the end of June, in time for the Census Bureau to print the 2020 questionnaire. The court's four liberal justices appeared dead-set against adding the question to the short form that goes to every household. They cited Census Bureau estimates that it would reduce response rates among households with noncitizens by more than 5%. "The secretary needs reasons to do that" under federal law, Associate Justice Elena Kagan said. "I searched the record, and I don't see any reason." U.S. Solicitor General Noel Francisco argued that the citizenship question should make a census comeback after 70 years because the data will help in enforcing the Voting Rights Act, which plays a key role in the drawing of congressional districts. As for the expected reduction in response rates, Francisco said, "You're always trading off information and accuracy." Attorneys for New York, immigrant rights groups and the House of Representatives contended that the question would scare some noncitizens into avoiding the census altogether. That could harm localities with large immigrant populations, both politically and financially. Like what you're reading? :Download the USA TODAY app for more Ross lost at district courts in California, New York and Maryland. Three judges named by President Barack Obama described acts of subterfuge and misleading statements they said were intended to obscure the real reasons for asking the citizenship question. The three trial records showed that before seeking the Justice Department's imprimatur, Ross spoke with White House chief strategist Steve Bannon and Kansas Secretary of State Kris Kobach, both fierce opponents of more liberal immigration policies. Kobach lobbied for the citizenship question, and the Justice Department under Attorney General Jeff Sessions later requested it. The census is intended to count anyone residing in the country, so seats in the House of Representatives can be apportioned fairly among the states. Simply put, its goal since 1790 has been counting heads. Census Bureau officials objected when Ross called for the question to be asked more than a year ago. They argued that it would reduce response rates among households with noncitizens, forcing the bureau to conduct more follow-up work at an estimated cost of $27.5 million. Ross said the "need for accurate citizenship data and the limited burden that the reinstatement of the citizenship question would impose outweigh fears about a potentially lower response rate." During Tuesday's oral argument, it appeared most of the justices had their minds made up. Liberals asked nearly all the questions of Francisco, the government's lawyer. Conservatives dominated the questioning of three lawyers for New York, immigrant rights groups and the Democratic-run House. Associate Justice Sonia Sotomayor, the court's lone Hispanic member, said "nobody doubts" asking about citizenship will reduce response rates. She said Hispanics have "a legitimate fear" of immigration authorities and called the citizenship question "a solution in search of a problem." "The enumeration is how many people reside here, not how many are citizens," Sotomayor said. "That's what the census survey is supposed to figure out." Conservative justices said any reduction in responses could not be blamed solely on the citizenship question. Associate Justice Samuel Alito said socioeconomic status, education and language barriers could have an effect. Associate Justice Neil Gorsuch said just making the census form longer might play a role. The court's newest member, Associate Justice Brett Kavanaugh, noted the United Nations recommends that countries gather citizenship data and rattled off a number that do so. In response, New York Solicitor General Barbara Underwood acknowledged it would be "useful information" but should not interfere with the census' purpose – counting all people. Dale Ho, an American Civil Liberties Union lawyer representing immigrant rights groups, said response rates don't tell the whole story. He said one-third of noncitizens respond inaccurately to questions about citizenship on other forms. When Douglas Letter, representing the House of Representatives, said the court should block the citizenship question to protect the nation's head count, Roberts and Kavanaugh asked why Congress doesn't prohibit it. Roberts, whose vote on the newly constituted court is critical, noted the census included demographic questions in the past on subjects ranging from home ownership to radios. "The questions go quite beyond how many people there are," he said.<doc-sep>
(CNN) — Supreme Court justices were deeply divided Tuesday over whether the Trump administration can add a citizenship question to the 2020 census, with the conservative justices showing signs that they were inclined to vote in favor of allowing the question. After more than an hour and a half of arguments where the justices repeatedly interrupted each other and counsel, Justices Samuel Alito and Neil Gorsuch suggested that Commerce Secretary Wilbur Ross was within his right to add the question. Chief Justice John Roberts asked questions that seemed at times favorable to the administration, and Justice Brett Kavanaugh stressed that Ross has discretion in the area and that other countries ask a similar question. He called it a “common question” internationally. The four liberal justices pounced on the administration’s argument however, asking whether the addition of the question would reduce the number of respondents to the census. Justice Stephen Breyer asked why Ross overruled census officials in making his decision. Justice Sonia Sotomayor was perhaps the most persistent questioner. She pressed Solicitor General Noel Francisco on why the question was being asked of all recipients after some “65 odd years” of being left off. She said there was “no doubt” that people – non citizens and their households – would respond less. Justice Elena Kagan told Francisco that she searched the record for Ross’s justification in 2018, but came up empty. She suggested that Francisco was providing a kind of “post hoc rationalization” after the decision was made. RELATED: John Roberts faces another test with census case The case comes on the eve of the 2020 census and represents the Supreme Court’s foray into an issue that goes to the core of political representation. The new conservative majority on the court – solidified with the addition of two Trump nominees – will have to weigh in on critics’ allegations that the administration is acting in a way to stunt the political influence of minorities. The Constitution requires that every person be counted in the country each decade, and the census provides critical data that is used for issues such as the allocation of congressional seats and the distribution of billions of federal dollars to states and localities. Opponents of the question, which has not been asked of all recipients since 1950, say it will lead to a decrease in response rates by the millions. Lower courts Lower courts have ruled against the government, pointing to the administration’s shifting rationale for reinstating the question and held that the way the government proceeded was illegal. Ross’s decision was unlawful for a “multitude of independent reasons and must be set aside,” Judge Jesse M. Furman of the U.S. District Court for the Southern District of New York ruled in January in a 277-page opinion after holding an eight-day trial. Furman said that Ross’ decision to add the question violated the Administrative Procedure Act, a federal law that governs the way that agencies can propose and establish regulations. He said that Ross failed to consider several important aspects of the issue, and “alternately ignored, cherry-picked or badly misconstrued the evidence in the record before him.” Most critically, Furman said that Ross’s stated rationale for the question, to promote the enforcement of the Voting Rights Act, was “pretextual – in other words, that he announced his decision in a manner that concealed its true basis rather than explaining it,” as the Administrative Procedure Act required him to do, the judge held. It was back in March of 2018 that Ross announced that the Department of Justice – then still led by former Attorney General Jeff Sessions – had requested that the Census Bureau reinstate the question in order to obtain “more effective enforcement” of the Voting Rights Act. Ross acknowledged that adding the question “could reduce” response rates, but said that more accurate citizenship date would outweigh such fears. “After a thorough review of the legal, program and policy considerations, as well as numerous conversations with the Census Bureau leadership and interested stakeholders,” Ross wrote, he had decided to proceed. But after a trial, Furman said that Ross’ justification in a March 2018 letter that announced the reinstatement was “materially inaccurate.” Furman – drawing from documents and testimony – wrote that Ross, almost as soon as he arrived in office in February of 2017, began asking questions about adding a citizenship question.