A Manhattan
district court judge earlier this week blocked the Trump administration from
adding a question on citizenship to the 2020 census, and in doing so has sought
to weaken executive power while strengthening the administrative state.
The Trump administration
has one choice here: Overturn this judicial overreach through appeal.
The decision
was biased and based on selective evidence. It needs to be overturned and
corrected at once.
As Judge
Jesse M. Furman of the Southern District of New York himself observed in his
ruling, “Time is of the essence because the Census Bureau needs to finalize the
2020 questionnaire by June of this year.”
The administration
must therefore seek a stay at the U.S. Court of Appeals for the Second Circuit,
and if that fails go straight to the Supreme Court for an expedited review.
Shoddy Reasoning
Furman, an
Obama appointee, bought into the plaintiffs’ arguments that the citizenship
question would lead to an undercount of illegal residents—and Hispanics in
general—despite the lack of evidence supporting that claim.
It is
important to note something that seemed to not occur to the judge: The question
the administration wants to add to the census does not ask if someone is in the
country illegally. It simply asks if the individual is a citizen.
It defies
common sense for the judge to believe that a high percentage of aliens residing
in this country illegally would fill out the census in the first place, while
aliens who are here legally, never mind the country’s citizens no matter where
they were born—would have no reason not to fill out the census form.
In his
opinion, the judge selectively recitated the long history of a citizenship
question on the census, which first occurred in 1820, but failed to mention that
there is no evidence that it has led to an undercount on the American Community
Survey, which is sent out by the Census Bureau every year.
A
citizenship question has been on the American Community Survey since its
inception a decade ago, when it replaced what was known as the “long form,” which
also contained a citizenship question.
As the judge
himself observed, Commerce Secretary Wilbur Ross’s decision to add the
citizenship question is “not inconsistent with the Constitution.” He also had
to admit that the plaintiffs “did not carry their burden of proving that Commerce
Secretary Wilbur Ross was motivated by invidious discrimination and thus that
he violated the equal protection component of the due process clause.”
That was one
of three legal conclusions the judge reached.
Far-Left Plaintiffs
Another conclusion
was that among the plaintiffs who had legal standing to bring the claims were
so-called “NGO Plaintiffs” (from private advocacy organizations). The ruling
said the NGOs will supposedly suffer “a loss of political power and funds,
among other harms,” simply because a citizenship question is asked on the census.
That is an
entirely speculative claim by the judge that does not meet the basic
requirements of standing, since they have no right to government funding.
These NGO plaintiffs
are comprised of four groups: the New York Immigration Coalition, CASA de
Maryland, the American-Arab Anti-Discrimination Committee/ADC Research
Institute, and Make the Road New York. They are mostly radical leftist
organizations that partially live off the American taxpayer, receiving government
grants sometimes dependent on census numbers.
That their supposed
loss of federal grants and “political power” contributed to the ruling is part
of a larger problem.
For example,
the ruling held that among the loser of funds would be Planned Parenthood of
New York City. The judge also quoted CASA’s chief of programs and services,
George Escobar, as bemoaning the fact that, as a result of the citizenship
question, CASA is having to divert “limited resources in an effort to encourage
participation in the decennial census.”
Since CASA
is concerned to a large degree with protecting illegal aliens, a supposed
“diversion” of their resources would actually benefit federal law enforcement
and minimize CASA’s obstruction of federal immigration laws. There is little
doubt that CASA must be using a lot of these “limited resources” to fight the
elected administration.
Justice
Department lawyers pointed out that these NGOs had not provided any analysis to
show they would incur “any incremental increase in expenditures due to the
citizenship question.”
Furman
dismissed this argument, writing, “The court is unpersuaded by defendants’
objection to CASA’s lack of detail in accounting for the precise incremental
increase in expenditures which, by definition, have not happened yet.”
Left unsaid,
of course, is the fact that CASA is a very leftist organization that does not
shy away from supporting Marxist governments in Latin America. It has received
funding from Venezuela’s government-controlled oil company. It is itself run by
a man who wrote for a Sandinista newspaper in Managua in the late 1980s while
Nicaragua was run by that Marxist-Leninist Party.
Are these the
groups that we want having access to public funds?
The court admitted
that there is “no dispute that the Constitution, the Census Act, and the [Administrative
Procedure Act] allow the secretary of commerce broad discretion over the design
and administration of the decennial census.” But then, the judge strains to
ignore that broad discretion to conclude that Ross violated the Administrative Procedure
Act in adding the citizenship question.
Most
blatantly, in the eyes of the judge, Ross “ignored, and violated, a statute
that requires him, in circumstances like those here, to collect data through
the acquisition and use of ‘administrative records’ instead of through ‘direct
inquiries’ on a survey such as the census.” This despite the fact that there
are no “administrative records” that accurately tally all of the noncitizens in
the country, particularly those who are here illegally.
Additionally,
Ross’s decision was “arbitrary and capricious”—a no-no under the Administrative
Procedure Act—because he “failed to consider several important aspects of the
problem; alternately ignored, cherry-picked, or badly misconstrued the evidence
in the record before him; acted irrationally both in light of that evidence and
his own stated decisional criteria; and failed to justify significant
departures from past policies and practices—a veritable smorgasbord of classic,
clear-cut APA violations.”
Actually,
the judge seems to be more accurately describing his own behavior in this
opinion.
Selective Reading of Evidence
It is here that the judge considered the evidence selectively, resulting in a decision that weakens the executive in favor of the administrative state and its NGO allies, both of which are constitutionally dubious.
The judge
wrote that under the Administrative Procedure Act, before enacting any reforms,
the executive branch must “consider all important aspects of a problem; study
the relevant evidence and arrive at a decision rationally supported by that
evidence; comply with all applicable procedures.”
Unfortunately, the Census Bureau has long been unduly influenced by a coterie of liberal outside groups inside its own National Advisory Committee on Race and Ethnicity, and other groups also known as the “stakeholders.” The judge’s demand is, therefore, a recipe for handing power to the administrative state—a problem he himself recognized in an offhand way by observing “some may deride requirements as ‘red tape.’”
As the judge
himself recognized, there was “near uniform opposition to the addition of the
citizenship question from stakeholders,” almost all of whom are also radical
left-wing organizations with their own objectives that have nothing to do with
the best interests of the public and the nation as a whole.
The judge’s
claim that asking the citizenship question was not a rational decision is not
supported by the evidence. This is particularly true of his cavalier dismissal
of the Justice Department’s argument that such citizenship/noncitizenship data
is necessary for effective enforcement of the Voting Rights Act.
One of us,
Hans von Spakovsky, worked at the Justice Department coordinating enforcement
of the Voting Rights Act, and affirms that having accurate citizen population
data is essential to fashioning remedies for violations of the law.
A Threat to Our Constitutional Order
Aside from
questions of constitutionality—weighty enough in themselves—this issue goes to
the heart of what the United States is. The founding documents give us strong
hints.
The
Constitution itself starts with “We The People of the United States,” suggesting
from the start that we constitute one people, and uses the word “citizen” 27
times—as in when it safeguards “the privileges or immunities of citizens of the
United States.”
The
Declaration of Independence meanwhile states that governments “are instituted
among Men” to secure the rights of the people who instituted it.
The only
distinction that is valid in the eyes of government, then, is that between citizen
and non-citizen. The first are the people who elect the government and whose
rights government safeguards, and the second are the members of another polity.
The 2020
census will ask questions on race, ethnicity, sex, sexual orientation, and age.
Yet according to this Manhattan judge, it cannot ask the one question that
should matter to a self-ruling republic that should be blind to color and sex.
The administration
must wage a fierce fight to get this decision overturned. It may think it has
its hands full with the government shutdown, but if it doesn’t fight here,
there will be no end to the problems it will face.
Source material can be found at this site.
