Challenges to citizenship question on 2020 U.S. census

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President Donald Trump (R) announced on July 11, 2019, that his administration was ceasing efforts to add a citizenship question to the 2020 census. Instead, Trump issued an executive order directing federal government agencies to provide citizenship information to the United States Department of Commerce. Attorney General William Barr stated that the decision ended the ongoing litigation surrounding the citizenship question on the census.

Trump issued the executive order in response to the United States Supreme Court's June 27, 2019, ruling in Department of Commerce v. New York, which held that the Trump administration's decision to add a citizenship question to the census was constitutional, but that Commerce Secretary Ross' rationale for the decision was inconsistent with the administrative record. The justices remanded the case to the agency for further review.

Prior to the United States Supreme Court's decision, three federal district judges had blocked the citizenship question from appearing on the 2020 census forms. The judges had argued that the agency process resulting in the addition of the question on the census violated administrative procedure under the Administrative Procedure Act (APA), that the question would hinder the federal government's duty under the U.S. Constitution's Enumeration Clause to count every individual living in the United States, and that Ross' decision to add the question violated the Census Act.

The timeline below identifies key events in the legal challenges to the citizenship question on the 2020 U.S. census.

Timeline

The following timeline tracks the legal challenges surrounding the 2020 census citizenship question:

July 17, 2019: Second district judge issues order blocking citizenship question from census

Judge George Jarrod Hazel of the United States District Court for the District of Maryland issued an order that blocked the Trump administration from including a citizenship question on the 2020 census. Hazel's order was nearly identical to the order issued by Judge Jesse Furman on July 16, 2019.[1]

July 16, 2019: District judge issues order blocking citizenship question from census

Judge Jesse Furman of the United States District Court for the Southern District of New York on July 16, 2019, issued an order that blocked the Trump administration "from including a citizenship question on the 2020 decennial census questionnaire; from delaying the process of printing the 2020 decennial census questionnaire after June 30, 2019, for the purpose of including a citizenship question; and from asking persons about citizenship status on the 2020 census questionnaire or otherwise asking a citizenship question as part of the 2020 decennial census."[2]

United States District Court for the Southern District of New York retained jurisdiction over the case and enforcement of the order until the census results were delivered to the president by Dec. 31, 2020.[2]

July 11, 2019: Trump announces executive order to obtain citizenship data through method other than census

Did you know?
A question about citizenship has appeared intermittently on the U.S. census since 1820. The question last appeared on a small sample (one-sixth) of the 2000 census forms.[3]

President Donald Trump (R) announced on July 11, 2019, that his administration would cease efforts to add a citizenship question to the 2020 census. Instead, Trump stated that he would issue an executive order directing federal government agencies to provide citizenship information to the United States Department of Commerce.[4]

"I am hereby ordering every department and agency in the federal government to provide the Department of Commerce with all requested records regarding the number of citizens and noncitizens in our country," said Trump. "They must furnish all legally accessible records in their possession immediately. We will utilize these vast federal databases to gain a full, complete, and accurate count of the noncitizen population."[4]

Attorney General William Barr stated that the decision ended the ongoing litigation surrounding the citizenship question on the census.[4]

July 9, 2019: District judge rejects proposed change to Trump administration legal team

Judge Jesse Furman of the United States District Court for the Southern District of New York on July 9, 2019, denied the Trump administration's motion to transfer its census-related cases to a new legal team. Furman issued an order stating that the government's request failed to satisfy the court's requirements for a substitution of counsel. Nine of the 11 attorneys were required to remain on the legal team, according to Furman's order. Two attorneys who had since transferred from the United States Department of Justice’s Civil Division were permitted to withdraw from the team.[5][6]

President Trump issued the following statement via Twitter in response to Furman's order:

July 7, 2019: DOJ transfers census-related cases to new legal team

The United States Department of Justice announced on July 7, 2019, that it would shift the handling of its census-related cases to a new legal team. "The Department of Justice is shifting these matters to a new team of Civil Division lawyers going forward," said spokeswoman Kerri Kupec. The department did not provide an explanation for the change.[7]

Deputy Attorney General James Burnham previously led the department's census-related caseload. A senior department official told Fox News that Burnham "thought it made sense to have a new legal team at this stage of the litigation."[7][8]

July 5, 2019: District judge orders continued proceedings in citizenship question case

Judge George Jarrod Hazel of the United States District Court for the District of Maryland issued an order on July 5, 2019, to continue proceedings in La Union del Pueblo Entero v. Ross. The case argued that the Trump administration approved the addition of a citizenship question on the 2020 census in order to gain a Republican electoral advantage.[9]

Hazel issued the order shortly after Trump administration officials notified him that the government was exploring alternative approaches to include the citizenship question on the 2020 census.[10]

July 5, 2019: Trump considers executive order to include citizenship question on census

President Trump told reporters on July 5, 2019, that his administration was exploring several avenues to add the citizenship question to the 2020 census, including a potential executive order. "We're thinking about [an executive order]," said Trump. "We have four or five ways we can do it, it's one of the ways we're thinking about doing it very seriously."[11] Trump further stated that his administration could begin printing the census forms and include the citizenship question later through an addendum "after we get a positive decision."[12]

July 3, 2019: Trump calls for continued efforts to include citizenship question on census

President Trump denied the United States Department of Justice's claim that his administration would no longer seek to add a citizenship question to the 2020 U.S. census. In a statement issued via Twitter on July 3, 2019, Trump called for his administration to continue its efforts to include the citizenship question on the census:

July 2, 2019: Trump administration states census forms will not include citizenship question

A spokesperson with the United States Department of Justice stated that the Trump administration would begin the process of printing census forms without a citizenship question. Commerce Secretary Wilbur Ross issued a statement that said in part, "I respect the Supreme Court but strongly disagree with its ruling regarding my decision to reinstate a citizenship question on the 2020 Census. The Census Bureau has started the process of printing the decennial questionnaires without the question. My focus, and that of the Bureau and the entire Department is to conduct a complete and accurate census."[13][14]

June 27, 2019: SCOTUS affirms legality of citizenship question; remands case to agency for procedural review

The United States Supreme Court ruled in Department of Commerce v. New York that the Trump administration's decision to add a citizenship question to the U.S. census did not violate the Enumeration Clause or the Census Act, but that Commerce Secretary Wilbur Ross' rationale for the decision was inconsistent with the administrative record. The court held 5-4 to affirm in part, reverse in part, and remand the case to the agency for further review.[15]

June 25, 2019: DOJ asks SCOTUS to consider equal protection claim in citizenship case

The United States Department of Justice filed a request with the United States Supreme Court on June 25, 2019, asking the court to consider the equal protection claim in addition to the constitutional and procedural claims in Department of Commerce v. New York. "The Fourth Circuit's order underscores the need for this Court to address the equal protection claim ... so that the lawfulness of the Secretary's decision can be fully and finally resolved," wrote Solicitor General Noel Francisco in the filing.[16]

In a separate letter to the court sent earlier that day, Francisco dismissed the plaintiffs' equal protection claim as "a speculative conspiracy theory that is unsupported by the evidence and legally irrelevant to demonstrating that Secretary Ross acted with a discriminatory intent."[17]

June 25, 2019: Appeals court returns citizenship question case to district court

A divided three-judge panel of the United States Court of Appeals for the Fourth Circuit remanded La Union del Pueblo Entero v. Ross, a case that challenged the addition of a citizenship question on the 2020 U.S. census, to the United States District Court for the District of Maryland for reconsideration by Judge George Jarrod Hazel. Plaintiffs raised an equal protection claim under the Fifth Amendment in light of new evidence that, according to the plaintiffs, suggests that the Trump administration approved the addition of a citizenship question on the 2020 census in order to gain a Republican electoral advantage.[18]

Judges Robert King and James Wynn voted to remand the case. Judge Steven Agee voted to deny the motion to remand.[19]

June 19, 2019: District judge signals willingness to reconsider citizenship question challenge

Judge George Jarrod Hazel of the United States District Court for the District of Maryland issued an order on June 19, 2019, stating that new evidence from a deceased Republican consultant's hard drive "raises a substantial issue" that could warrant reconsideration of La Union del Pueblo Entero v. Ross, a case that challenged the addition of a citizenship question on the 2020 U.S. census. Plaintiffs argued that the new evidence raised an equal protection claim under the Fifth Amendment because, according to the plaintiffs, files recovered from the hard drive demonstrated the Trump administration’s intent to add the citizenship question to the census in order to gain a Republican electoral advantage.[20][21]

Hazel ruled against the citizenship question on procedural grounds on April 5, 2019, and the case was pending appeal before the United States Court of Appeals for the 4th Circuit at the time of the order.[20][21]

June 12, 2019: House committee holds Trump officials in contempt over citizenship question documents

The House Oversight and Reform Committee voted 24-15 on June 12, 2019, to hold Attorney General William Barr and Commerce Secretary Wilbur Ross in contempt of Congress for refusing to comply with subpoenas requesting documents related to the decision to add a citizenship question to the 2020 census.[22][23]

The vote occurred hours after President Donald Trump (R) blocked the committee's access to the documents by asserting executive privilege at the recommendation of the U.S. Department of Justice.[22]

June 5, 2019: District judge delays action on new citizenship question challenge until after SCOTUS ruling

Judge Jesse Furman of the United States District Court for the Southern District of New York on June 5, 2019, declined to amend the record in Department of Commerce v. New York to bring new evidence alleging contradictory testimony by Trump administration officials before the United States Supreme Court as the court considers the case.[24][25]

Though Furman described the allegations as "serious," he stated that he no longer had jurisdiction over the case and did not want to act in a manner that would appear as though he were attempting to influence the United States Supreme Court justices. He also observed that the United States Supreme Court's decision could potentially help resolve the new claims.[24][25]

Furman stated that he would not rule on the merits of sanctions against Trump administration officials until the United States Supreme Court issued its decision by the end of June. Instead, he set dates in July and August for the submission of written arguments.[24][25]

May 30, 2019: Deceased consultant's hard drive prompts new challenge in citizenship question case

Attorneys for plaintiffs in Department of Commerce v. New York sent a letter to Judge Jesse Furman of the United States District Court for the Southern District of New York on May 30, 2019, that highlighted new evidence allegedly demonstrating that the Trump administration approved the addition of a citizenship question on the 2020 census in order to gain a Republican electoral advantage.[26]

The letter called for Furman to consider issuing sanctions or penalties against the federal government in response to what the plaintiffs considered to be misleading testimony of administration officials, who argued that the administration added the citizenship question to the census in order to improve enforcement of the Voting Rights Act.[26][27]

The plaintiffs alleged that documents recovered from the hard drive of the late Republican political consultant Dr. Thomas Hofeller demonstrated his influence in drafting the citizenship question. The documents included a 2015 report by Hofeller concluding that a citizenship question would give Republicans an electoral advantage as well as text that the plaintiffs claimed showed Hofeller's involvement as a ghostwriter on an early draft of the administration's request to include the citizenship question on the census. These findings, according to the plaintiffs, contradicted the sworn testimony of administration officials arguing that the administration included the citizenship question to support Voting Rights Act enforcement.[27][28]

A Justice Department spokesperson denied the plaintiffs' allegations, stating that Hofeller's study "played no role in the Department's December 2017 request to reinstate a citizenship question to the 2020 decennial census. These unfounded allegations are an unfortunate last-ditch effort to derail the Supreme Court's consideration of this case."[28]

Furman scheduled a hearing on June 5, 2019, to consider the groups' request for sanctions or penalties.[28]

April 23, 2019: SCOTUS holds oral arguments in citizenship question case

The United States Supreme Court heard oral arguments on the citizenship question in Department of Commerce v. New York on April 23, 2019. An analysis of the hearing by SCOTUSblog predicted a 5-4 decision to uphold the citizenship question with the justices divided along ideological lines. A ruling was expected in June 2019.[29]

April 8, 2019: Trump administration appeals third ruling

The Trump administration appealed Judge Hazel's decision on April 8, 2019.[30]

April 5, 2019: Third federal district judge rules against citizenship question

Judge George Jarrod Hazel of the United States District Court for the District of Maryland became the third federal judge to strike down the citizenship question in the consolidated case La Union del Pueblo Entero v. Ross on April 5, 2019. Hazel argued that the question was unconstitutional and a violation administrative law.[30]

Hazel claimed that the citizenship question violated the U.S. Constitution because it could have hindered the government's responsibility under the Enumeration Clause to count every person living in the United States. He also claimed that the Trump administration failed to follow proper administrative procedure when it added the citizenship question to the U.S. census. He wrote, “The decision to add a citizenship question to the 2020 census was arbitrary and capricious in violation of the [Administrative Procedure Act]" and "ran counter to the evidence before the agency."[30][31]

Hazel also held that the administrative record demonstrated that the process used to add the citizenship question was "nothing more than a pretext designed to provide cover for the Secretary's unexplained desire to add the citizenship question to the census."[31]

Hazel disagreed with the plaintiffs on two challenges. He stated that the plaintiffs did not provide enough evidence to support their claims that the citizenship question was added as a means to discriminate against non-citizens and minority populations and to undermine their constitutional rights.[31]

March 15, 2019: SCOTUS agrees to broaden scope of citizenship question case

The U.S. Supreme Court agreed to broaden the scope of Department of Commerce v. New York to also consider Judge Seeborg's claim in State of California v. Ross that the citizenship question violated the U.S. Constitution's Enumeration Clause.[32]

March 11, 2019: DOJ asks SCOTUS to broaden scope of case to hear constitutional challenge

The DOJ requested that the U.S. Supreme Court weigh in on Judge Seeborg's constitutional claim in State of California v. Ross when it hears Department of Commerce v. New York on April 23, 2019.[33]

"In light of that finding, only if the Court addresses respondents' Enumeration Clause claim can its decision definitively resolve whether the Secretary may reinstate a question about citizenship to the 2020 decennial census," said Solicitor General Noel Francisco in a March 11, 2019, letter. He continued, "In the alternative, if the Court has any concerns about addressing respondents' Enumeration Clause claim in this case, it should grant the government's petition in the California case and consolidate that case with this one for oral argument."[33][34]

March 6, 2019: Second federal district judge rules against citizenship question

U.S. District Judge Richard Seeborg of the United States District Court for the Northern District of California issued a ruling in State of California v. Ross on March 6, 2019, holding that Commerce Secretary Wilbur Ross' addition of a citizenship question on the 2020 census was unconstitutional and a violation of the Administrative Procedure Act (APA).[35]

Seeborg claimed that the question violated the APA because the law states that an agency action as unlawful if the action is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." Seeborg argued that the administrative record in the case demonstrated that the addition of the citizenship question was arbitrary and capricious in violation of the APA. He claimed that Ross had failed to follow the Census Bureau's recommendation to acquire citizenship data through available government records rather than through the addition of a new question on the census. Seeborg also argued that adding the citizenship question violated the Census Act, which states, "To the maximum extent possible and consistent with the kind, timeliness, quality and scope of the statistics required, the Secretary shall acquire and use information available from any source referred to in subsection (a) or (b) of this section instead of conducting direct inquiries."[35]

Seeborg ruled that the question was unconstitutional because it prevented the federal government from carrying out its duty under the U.S. Constitution's Enumeration Clause to count every person living in the United States every 10 years. Seeborg argued that the question could distort the proper apportionment of congressional representatives because it "will result in an undercount of noncitizens and Latinos, and, by extension, localities where many such persons reside. This, in turn, substantially increases the risk that California will lose a seat in the House of Representatives."[28][36][35]

February 15, 2019: SCOTUS agrees to hear citizenship question case

The U.S. Department of Justice (DOJ) appealed Department of Commerce v. New York to the United States Supreme Court and requested that the court bypass an appellate court decision in order to issue a ruling in time for the 2020 census. On February 15, 2019, the United States Supreme Court announced that it would hear the case. Oral argument was scheduled for April 23, 2019.[37]

January 15, 2019: Federal district judge rules Trump administration violated APA by adding citizenship question to census

Judge Jesse Furman of the United States District Court for the Southern District of New York issued a ruling in a consolidated case on January 15, 2019, holding that Commerce Secretary Wilbur Ross violated the Administrative Procedure Act (APA) by, in his view, not properly following APA procedure when approving the addition of a question regarding citizenship status on the 2020 census.[38][39]

Plaintiffs in the case had also argued that Ross violated the equal protection component of the U.S. Constitution's Due Process Clause. Furman, however, held that the due process claims fell short because the administrative record in the case did not demonstrate discrimination as a motivating factor for Ross' decision.[38]

The case consolidated two legal challenges before the Southern District of New York: State of New York, et al. v. United States Department of Commerce, et al. and New York Immigration Coalition, et al. v. United States Department of Commerce, et al. The plaintiffs in the cases included a coalition of 18 states and the District of Columbia, 15 cities and counties, the United States Conference of Mayors, and a group of advocacy organizations.[38]

Following the ruling, the U.S. Department of Justice (DOJ) stated that it was disappointed in the decision and was reviewing the case. "Our government is legally entitled to include a citizenship question on the census and people in the United States have a legal obligation to answer," said DOJ spokeswoman Kelly Laco. "Reinstating the citizenship question ultimately protects the right to vote and helps ensure free and fair elections for all Americans."[40]


See also

External links

Footnotes

  1. ↑ CNN, "2nd federal judge blocks Trump admin from adding citizenship question to census," July 17, 2019
  2. ↑ 2.0 2.1 Washington Examiner, "Federal judge blocks Trump from placing citizenship question on 2020 census," July 16, 2019
  3. ↑ Center for Immigration Studies, "A History of the Census Bureau's Birthplace and Citizenship Questions in One Table," June 8, 2018
  4. ↑ 4.0 4.1 4.2 ABC News, "Trump announces end of fight to add citizenship question to census," July 11, 2019
  5. ↑ Courthouse News Service, "No Exit for Justice Department Counsel in NY Census Suit," July 9, 2019
  6. ↑ United States District Court for the Southern District of New York, "Memorandum Opinion and Order," July 9, 2019
  7. ↑ 7.0 7.1 Politico, "Justice Department replaces attorneys in census citizenship-question battle," July 8, 2019
  8. ↑ Fox News, "DOJ announces legal team shift over citizenship question on 2020 census," July 8, 2019
  9. ↑ National Public Radio, "Judge To Review Claims Of Census Citizenship Question's 'Discriminatory' Origins," July 5, 2019
  10. ↑ NBC News, "Judge orders census citizenship case to go forward, will look at Trump 'discriminatory motive'," July 6, 2019
  11. ↑ NBC News, "Trump 'determined' to add citizenship question to the census, immigration official says," July 7, 2019
  12. ↑ CBS News, "Trump confirms he's 'thinking about' an executive order over citizenship question," July 5, 2019
  13. ↑ Cite error: Invalid <ref> tag; no text was provided for refs named printforms
  14. ↑ CNBC, "Trump says he is ‘absolutely moving forward’ with census citizenship question, contradicting his own administration," July 3, 2019
  15. ↑ Supreme Court of the United States, "Department of Commerce v. New York," June 27, 2019
  16. ↑ Supreme Court of the United States, "Request from Solicitor General Noel Francisco," June 25, 2019
  17. ↑ Supreme Court of the United States, "Letter from Solicitor General Noel Francisco," June 25, 2019
  18. ↑ Washington Examiner, "Appeals court sends census dispute back to Maryland judge," June 25, 2019
  19. ↑ Talking Points Memo, "Appeals Court Shakes Up Census Citizenship Case Days Before SCOTUS Decision," June 25, 2019
  20. ↑ 20.0 20.1 U.S. News and World Report, "Federal Judge Rules Census Citizenship Question Warrants Fresh Look," June 19, 2019
  21. ↑ 21.0 21.1 Boston Globe, "Census citizenship question merits more consideration in light of new evidence, judge says," June 19, 2019
  22. ↑ 22.0 22.1 Politico, "House panel votes to hold Barr, Ross in contempt," June 12, 2019
  23. ↑ USA Today, "Trump executive privilege keeps census documents secret; House panel holds Barr, Ross in contempt," June 12, 2019
  24. ↑ 24.0 24.1 24.2 Mother Jones, "Judge Deals a Blow to Effort to Block Census Citizenship Question at Supreme Court," June 5, 2019
  25. ↑ 25.0 25.1 25.2 San Francisco Chronicle, "Judge: Claims of political motives in census fight 'serious,'" June 5, 2019
  26. ↑ 26.0 26.1 United States District Court for the Southern District of New York, "Letter to Judge Jesse Furman," May 30, 2019
  27. ↑ 27.0 27.1 Daily Caller, "CIVIL RIGHTS GROUPS SAY THIS NEW EVIDENCE WILL SINK THE CENSUS CITIZENSHIP QUESTION," May 30, 2019
  28. ↑ 28.0 28.1 28.2 28.3 National Public Radio, "GOP Redistricting Strategist Played Role In Push For Census Citizenship Question," May 30, 2019
  29. ↑ SCOTUSblog, "Argument analysis: Divided court seems ready to uphold citizenship question on 2020 census," April 23, 2019
  30. ↑ 30.0 30.1 30.2 Jurist, "Trump administration to appeal Maryland judge’s ruling on census citizenship question," April 9, 2019
  31. ↑ 31.0 31.1 31.2 National Public Radio, "Trump Administration's Census Citizenship Question Plans Halted By Third Judge," April 5, 2019
  32. ↑ NBC News, "Supreme Court expands scope of census citizenship question case," March 15, 2019
  33. ↑ 33.0 33.1 Newsmax, "DOJ Asks SCOTUS to Hear Case on Census Citizenship Question," March 11, 2019
  34. ↑ United States Supreme Court, "March 11 Letter from Solicitor General Noel Francisco," March 11, 2019
  35. ↑ 35.0 35.1 35.2 National Public Radio, "March 6, 2019 Opinion by U.S. District Judge Richard Seeborg," March 6, 2019
  36. ↑ Market Watch, "Judge calls Trump administration push for citizenship question on census forms arbitrary, capricious and a threat to democracy," March 9, 2019
  37. ↑ USA Today, "Supreme Court will rule on Trump administration's effort to add question on citizenship to 2020 Census," February 15, 2019
  38. ↑ 38.0 38.1 38.2 Route Fifty, "Federal Judge Rules Against Trump Administration's Citizenship Question on Census," January 15, 2019
  39. ↑ United States District Court for the Southern District of New York, "State of New York, et al. v. United States Department of Commerce, et al. and New York Immigration Coalition, et al. v. United States Department of Commerce, et al." January 15, 2019
  40. ↑ Politico, "Judge rules against Trump administration's citizenship question on 2020 census," January 15, 2019
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