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The Citizenship Question


A case to be argued before the Supreme Court of the United States (SCOTUS) in three weeks has both legal scholars and lay people talking. Department of Commerce v. U.S. District Court for the Southern District of New York is before SCOTUS on an expedited basis, proceeding straight from the District Court to the Supreme Court without a stop at the Second Circuit Court of Appeals. The reason for this unusual procedural posture? The issue is whether to allow the addition of a citizenship question on the 2020 U.S. census, and the forms must be sent to the printer starting in June of this year. (Technically speaking, SCOTUS will decide whether to uphold the District Court’s disallowance of the citizenship question; see below.)

But before considering what will be argued on April 23 before SCOTUS, a brief history of the census might help.


The Constitution requires “actual enumeration” of the population every decade. The first census was conducted in 1790, by U.S. Marshals; eventually, Marshalls were replaced by written forms through the U.S. mail. President Thomas Jefferson proposed the first citizenship question in 1800, but it was not added to the census until two decades later in the 1820 census as a question asking the number of “foreigners not naturalized” in the household. From 1820 until 1950, the decennial census consistently asked a citizenship question of every household.

After 1950, however, the Census Bureau began sending out long forms and short forms, and only the long form version contained a citizenship question. So information regarding citizenship was still being gathered, but not from every household. In 2005, the American Community Survey began to be circulated. The ACS is a detailed questionnaire that is sent to 1 in every 38 randomly selected households, and is used to provide “estimates of demographic characteristics.” The ACS goes out on a rotating basis throughout the decade. It contains a citizenship question, but as stated, does not go to every household. Therefore, the last time the Census Bureau sent a citizenship question to every household was the 1950 decennial census—70 years ago.


Many people argue that it should not be, and that data regarding demographic trends must be accurate and not merely extrapolated from randomly selected households. However, many immigrant communities—even those migrants who are in the U.S. lawfully—have said that they fear answering the census. Fear of harassment and deportation could lead to undercounting of these communities, which could in turn, have dire consequences. Census data is used for many important things: drawing of Congressional districts; apportionment of federal resources for health care services, infrastructure planning, disaster preparedness, and research, to name a few. If large numbers of immigrant communities are undercounted, then those communities will be under-represented in Congress and under-funded at home. “We cannot afford to have millions of Latinos and other Americans missed in the nation’s decennial count,” commented Arturo Vargas, the CEO of the National Association of Latino Elected and Appointed Officials Educational Fund.

Is this fear justified? The Census Bureau is legally required to keep information on individuals confidential, even from the FBI and the DOJ. However, federal agencies can request census information on specific population groups. With the current environment regarding immigration, border detentions, and the inflamed rhetoric, is it any wonder that immigrants do not want to identify themselves and their citizenship status?


Many are asking the obvious question of why and why now? If a citizenship question is already on the long form version of the decennial census, and on the ACS, why is one needed on all forms of the decennial census? In other words, what is the reason for adding the question?

This is the very crux of the lawsuit and the argument before SCOTUS. The District Court Judge held that the citizenship question was added by Commerce Secretary Ross in an “arbitrary and capricious manner,” and the reason offered—to help enforce the Voting Rights Act of 1965—was pretextual and a post-hoc rationale. In January 2019, Judge Furman ruled that the government’s conduct involved “a smorgasbord of classic, clear-cut” violations of federal law governing administrative agencies. The citizenship question was disallowed. The Trump Administration sought an expedited appeal before the Supreme Court, which the Court granted in February. The case is set for oral argument on April 23.


Due to a recent district court case in California, SCOTUS will also consider whether the citizenship question is an impermissible exercise of the power granted by the Enumeration Clause to Congress. Even though the District Court in New York dismissed the claim that the citizenship question violated this clause and therefore was unconstitutional, the fact that a federal court in California ruled in March that the question did violate the clause created a possible disagreement among Circuits and therefore SCOTUS agreed to add the issue to the appeal of the N.Y. case. Because the Enumeration Clause and the power it grants to Congress will now be part of what the Court considers, the impact of the citizenship question instead of only the process of its addition will be squarely before the Court.

Thus, the evidence that migrant and Hispanic communities will not be as responsive and therefore be undercounted is evidence that goes toward the overall accuracy of the census if a citizenship question is included. (The government’s own analysis indicates that if the citizenship question is included, approximately 6.5 million people won’t respond, which creates the risk that states in which the communities’ members live will lose seats in the House of Representatives and federal funding for programs that they use.) If inclusion of the question will decrease the accuracy of the census, does it violate the Enumeration Clause? The District Court in California answered that question in the affirmative; now it will be considered by the Supreme Court. So stay tuned.


If you or someone you know is fearful about your/their immigration status, contact Dave Thomas at The Thomas Law Firm for a free evaluation regarding your legal rights.

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