George Will: Supreme Court mulls citizenship question for census
WASHINGTON — The oral arguments the Supreme Court will hear on Tuesday will be more decorous than the gusts of judicial testiness that blew the case up to the nation’s highest tribunal. The case, which raises arcane questions of administrative law but could have widely radiating political and policy consequences, comes from the Enlightenment mentality of the nation’s Founders, and involves this question: Does it matter that a conspicuously unenlightened member of the president’s cabinet lied in sworn testimony about why he made a decision that he arguably has the statutory power to make?
America’s 18th-century Founders placed in the Constitution a requirement for a census. And the 14th Amendment stipulates the required actual enumeration, every 10 years, of “the whole number” of persons residing in the country. From 1820 through 1950, the census almost always included a citizenship question, and in 2018 Commerce Secretary Wilbur Ross decided that the 2020 “short-form” questionnaire should include one. Ross has testified that he was “responding solely” to a Justice Department request for the question to provide data helpful to enforcement of the Voting Rights Act (VRA) of 1965.
A federal district judge called this Ross rationale “pretextual” because Ross was justifying a decision “already made for other reasons.” This was a polite way of saying Ross lied, which he almost certainly did: Justice officials initially rejected Commerce’s request that it ask for a citizenship question. The district judge said Commerce sought the Justice letter to “launder” the request for the citizenship question “through another agency,” this being just one of “a veritable smorgasbord” of rules violations by Ross and his aides.
Ross also testified that he was “not aware” of any discussions of the citizenship questions between Commerce and the White House. But after 18 states, 15 municipalities and various immigration advocacy groups sued, he acknowledged meeting early in 2017 with then-presidential adviser Stephen Bannon, an anti-immigration zealot. The district judge also said Ross “materially mischaracterized” — translation: lied about — a conversation with a polling expert in order to obfuscate the expert’s objections to the citizenship question.
The citizenship question is, the Trump administration insists, “a wholly unremarkable demographic question.” But why, then, was Ross so dishonest concerning its genesis? This is probably why: A substantial undercount would affect the formulas by which hundreds of billions of dollars of federal spending are dispersed, to the disadvantage of blue states and cities with large immigrant populations. Furthermore, an undercount could cost some states, particularly blue states, congressional seats, and hence electoral votes.
The district court judge was scalding about the “egregious” behavior of Ross, who “in a startling number of ways” either “ignored, cherry-picked, or badly misconstrued” evidence, and “acted irrationally … in light of that evidence.” Yet the judge professed himself “unable to determine — based on the existing record, at least — what Secretary Ross’ real reasons for adding the citizenship question were.” Perhaps the judge was precluded from coming to a conclusion about Ross’ motives; the public is not.
The Supreme Court, however, is apt to decide that Ross’ wretched behavior does not alter the fact that Congress has granted to him sufficient discretion over the census to accommodate his decision to include the citizenship question. This, in spite of reasonable surmises about his motives that his behavior seemed designed to disguise.
George Will is a columnist for The Washington Post and can be reached via email.