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>The Supreme Court seemed willing Tuesday to let the Trump administration add a question about citizenship to the 2020 census form that goes to every U.S. household, despite claims from populous states that it would actually make the count less accurate. Both the government and the challengers agree that adding the question would reduce the census response rate, especially in immigrant communities. But the court's conservative majority seemed prepared to rule that Commerce Secretary Wilbur Ross acted within his authority to add it because no method is guaranteed to produce an accurate count. Ross told Congress that the question was added at his direction after he received a letter from the Justice Department saying the citizenship data was needed to properly enforce federal voting laws. Solicitor General Noel Francisco told the court Tuesday that not including the question, and trying to extrapolate the number of citizens and noncitizens by using other government databases, would produce an inaccurate result. Since it is impossible to say with certainty which method would produce the fewest errors, Ross did not violate the law by opting to include the citizenship question, Francisco said. "There's always going to be a trade-off" between information gained and the accuracy of the overall count, he said. Justice Samuel Alito suggested that he did not think Ross abused his discretion by ordering the question to be added. Both Chief Justice John Roberts and Justice Neil Gorsuch said citizenship questions have been included in the census for most of American history. A federal judge in New York ruled that Ross's explanation was a pretext because he actually asked the Justice Department to send a letter requesting the data. Some of the Supreme Court's more liberal justices were clearly troubled by that fact. "There needs to be a reason to add the question, and I don't see any reason," Justice Elena Kagan said. "It did seem the secretary was shopping for a need." A census is required by the Constitution every 10 years, and the results determine the size of the U.S. House of Representatives delegation for each state. Many programs also use the data to calculate the share of federal funds they give to local governments. Lawyers for 18 states, several of the nation's largest cities and immigrant rights groups told the court that the citizenship question would make immigrants reluctant to respond to census takers. Dale Ho of the American Civil Liberties Union said experience from past surveys shows that noncitizens respond inaccurately to the census about a third of the time. "Adding the question doesn't help enforcing the Voting Rights Act because people so often lie," Ho said. Led by New York, the states opposing the addition of the citizenship question also said Ross' directive sidestepped the Census Bureau's longstanding procedures for testing changes to the questionnaire in order to evaluate whether they would lead to an undercount. Because the citizenship question would depress minority responses, the challengers said, including it on the form would actually produce a less accurate count than leaving it off and using Social Security and IRS data to supplement the information gathered from the census form. President Donald Trump weighed in on the issue in early April. "Can you believe that the Radical Left Democrats want to do our new and very important Census Report without the all important Citizenship Question," Trump wrote on Twitter. "Report would be meaningless and a waste of the $Billions (ridiculous) that it costs to put together!" The Supreme Court will decide the case by late June.<doc-sep>michael barbaro From The New York Times, I’m Michael Barbaro. This is “The Daily.” Today: Ahead of the 2020 census, a case has been fast-tracked to the highest court about who we count and why. Adam Liptak on the biggest case in front of the Supreme Court this session. It’s Monday, April 29. archived recording (wilbur ross) Thank you, Chairman Culberson, Ranking Member Serrano, and members of the House Appropriations subcommittee. adam liptak So on March 20th of 2018 — archived recording (wilbur ross) Thank you for this opportunity to discuss President Trump’s fiscal year 2019 budget request for the U.S. — adam liptak There is, as there is almost every day Congress is in session, an extremely routine and boring budget hearing. archived recording Secretary Ross, welcome. We’re really honored to have you here today. adam liptak And today, they have the commerce secretary, Wilbur Ross, come and testify. archived recording I wanted to ask a question about the traditional census undercount of young children. adam liptak They ask him about the census. The Commerce Department’s in charge of the census, and they’re preparing for the 2020 census. archived recording (wilbur ross) Well, it relates to the overall issue of how do we encourage count? You were here when — adam liptak And at one point, a Democratic congressman asks a question about an addition to the 2020 census forms sent to every household, which will ask everyone about whether they’re citizens of the United States. [music] archived recording Secretary Ross, I know from your testimony that you take the administration of the census very seriously. And part of that duty is to administer it in a non-political, nonpartisan way. Is that correct? archived recording (wilbur ross) Yes, sir. archived recording Should political parties and campaign politics ever factor into what is asked of every household in the country on the census? archived recording (wilbur ross) No political party has asked us to do anything on the census. We have had a request, as everyone is aware, from the Department of Justice to add a citizenship question to the 2020 census. adam liptak And Wilbur Ross responds categorically that he was responding solely to the Justice Department’s request. archived recording (speaker 1) Has the president or anyone in the White House discussed with you or anyone on your team about adding this citizenship question? archived recording (wilbur ross) I’m not aware of any such. archived recording (speaker 1) Thank you. archived recording (speaker 2) Judge Carter. archived recording (john carter) Thank you, Mr. Chairman. You have consistently — adam liptak So that hearing ends like most budget hearings. Nobody pays attention, and nobody thought at the time that that exchange with Wilbur Ross and whether he was telling the truth would turn out to be central to a case that would go to the Supreme Court. [music] michael barbaro Adam, how does the census end up in a case before the Supreme Court? adam liptak So the census is required by the Constitution. It’s in the sixth sentence of the Constitution. It’s the first thing in the Constitution that actually directs the federal government to do something directly. And what it tells the federal government to do is, every 10 years, you have to count up everybody in the nation. archived recording (SINGING) In 80 million mailboxes ‘cross the U.S.A., the census is a’comin’ to help us plan the way. adam liptak Actually, the census is the largest peacetime mobilization in America. Aside from sending troops overseas, this is when we put the most people into the field to do something. michael barbaro That’s another way of saying it’s very important. adam liptak It’s the very cornerstone and foundation of our political system. archived recording (SINGING) Help your community get equal government representation. Help show where funds are needed for jobs, schools — adam liptak It’s how we allocate political power. It’s how we allocate congressional seats. It’s how we draw voting districts. And it’s used to allocate hundreds of billions of dollars of federal funds. archived recording (SINGING) You can count on me. Can we count on you? adam liptak And the way we allocate those up is by counting the number of people in the state — everybody in the state, citizens or not. archived recording (SINGING) Answer the census. We’re counting on you. michael barbaro Do we know why it was written that way, why it doesn’t specify citizens? adam liptak You know, the question really ought to be, why should it specify citizens? What the framers were interested in was getting a count of everyone in a nation that didn’t even really exist yet. And it wasn’t germane to any question immediately on their minds. The question the framers wanted to know is, how many people live in the United States? Where do they live? And then and now, that is job one of the census. Nobody disputes that that constitutional phrase “actual enumeration” is the main and most important thing the census needs to do. michael barbaro So I filled out a census back in — 2010 was probably the last time. And it’s not just asking me to be counted in terms of my name, my address. It’s also asking about race, sex, income. How is all of that demographic information related to those goals? adam liptak It’s not related to those goals, but it’s been something that, over time, the Census Bureau has also done and done well. And in various ways, in addition to counting people, it also gathers valuable information used for a ton of stuff, including many of the categories you listed. But it tries not to do that if it’s going to do harm to job one. That is, it tries not to ask questions if it’s going to do harm to the fundamental purpose of counting everyone. [music] michael barbaro So what about the question of citizenship? How has the census approached that? adam liptak So from 1820 to 1950, various kinds of citizenship questions were not uncommon. Come the 1950s, there’s a revolution in social science and statistics and sampling. So they stop asking questions about citizenship, because they think it is one of those questions that’s going to do harm to the purpose of the census. michael barbaro And what’s the harm, exactly? adam liptak The harm is that people stop responding, or they respond falsely. So you’re simultaneously getting less participation — and substantially less participation — and also a bunch of false positives, because people who are fearful might say they’re citizens when they’re not. So the Census Bureau comes to think, we’re going to keep the main census form pure and focused on the things we really need to know. [music] michael barbaro So despite any efforts to get this citizenship question back on the census after the 1950s, when the social science begins to say it’s a bad idea, it has remained off the census. adam liptak Right. The Census Bureau’s longstanding position is that it’s a terrible idea to put the citizenship question onto the main census form. archived recording Overnight, the Trump administration announced a move that could impact the balance of power for years to come. The 2020 census — michael barbaro So Adam, how do we get to today, when the United States government is requesting that that question return to the census? adam liptak Well, President Trump, of course, ran on an assertive platform of addressing unlawful immigration. And he puts Wilbur Ross into the job of commerce secretary. archived recording Secretary Wilbur Ross announcing the decision following a request by the Justice Department. adam liptak And Wilbur Ross announces in March of 2018 that he’s going to add the citizenship question. archived recording 1 A new battle is brewing over the 2020 U.S. census. archived recording 2 California is suing the Trump administration over the decision to add that controversial question about citizenship to the 2020 census. archived recording 3 At least 12 states are expected to follow California’s lead and sue — adam liptak<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.