SCOTUS Hears Oral Arguments on Census Citizenship Question

By Heather Ham-Warren | April 26, 2019

Every ten years, the federal government sends questionnaires to households in the United States asking basic questions including the residents’ age, sex, race, ethnicity, whether or not they rent or own, and how they’re related. Congress has already allocated billions of dollars to pad the U.S. Census Bureau’s budget in anticipation for the 2020 census. On Tuesday, the judiciary branch also became involved in the upcoming count when the United States Supreme Court heard oral arguments about whether or not the Trump administration can include a citizenship question on the survey.

Last year, Department of Commerce Secretary Wilbur Ross announced that the next census form would include a question about whether each person being counted is a U.S. citizen. In his memo, Secretary Ross stated that “for the approximately 90 percent of the population who are citizens, this question is no additional imposition, and for the approximately 70 percent of non-citizens who already answer this question accurately on the [American Community Survey], the question is no additional imposition.”

Nonetheless, eighteen states and the District of Columbia, 15 cities and counties, plus the U.S. Conference of Mayors, sued the Commerce Department to block the citizenship question. A second coalition of NGOs led by the New York Immigration Coalition also filed suit. Both groups echoed the arguments of congressional Democrats that a citizenship question would greatly reduce participation by immigrant and Latino communities. Alternately, the government argued that adding the citizenship question to provide the Justice Department with more data to enforce the Voting Rights Act.

According to witnesses, the arguments—which last for eight-five minutes— became combative at times with several justices repeatedly interrupting counsel. In fact, Solicitor General Noel Francisco, counsel for the Trump administration, had barely started when Justice Sotomayor began her steady stream of questions even suggesting that the president actually invented reasons to ask about citizenship. Conversely, Justice Alito suggested that he did not think Ross abused his discretion by ordering the question to be added; and both Chief Justice Roberts and Justice Gorsuch said citizenship questions have been included in the census for most of American history.

Interestingly, in 2018, the state of Alabama joined by Representative Mo Brooks (R-Ala.) filed a lawsuit challenging the government’s current practice of counting illegal aliens in its official population numbers. Congressional apportionment ensures that all states are apportioned a number of seats in the House of Representatives that approximately corresponds to its share of the aggregate population of the country. Following the decennial census, the Clerk of the House of Representatives notifies each state of their allotted number of seats. However, because the current number of voting members is set at 435, should any state’s population increase enough to warrant an additional vote, it would have to be taken from another state.

Estimates show that some states will undoubtedly benefit for the addition of illegal aliens in their census counts. According to FAIR research:

Texas, with an estimated 2,482,000 illegal aliens, would pick up three seats (39 total);

Florida, with an estimated 1,279,000 illegal aliens, would gain two seats (29); and

California, with an estimated 3,535,000 illegal aliens, will likely hold at 53 seats, or perhaps even gain one.

Undoubtedly, a census that properly distinguishes between legal and illegal residents would provide policymakers reliable data about how many noncitizens are living in our country. SCOTUS is expected to issue a decision on the citizenship question by the end of the summer.