Trump administration’s official explanation for adding the question ‘seems to have been contrived,’ according to the majority opinion
WASHINGTON—A divided Supreme Court on Thursday prevented the Trump administration, for now, from asking U.S. residents on the 2020 census whether they are citizens, a considerable setback for the White House.
The court, in an opinion by Chief Justice John Roberts, didn’t issue a definitive decision finding the citizenship question unlawful, but it raised concerns about the Trump administration’s stated reason for adding the question to the census.
In strong language, the chief justice, joined by the court’s four liberal justices, said the administration’s official explanation “seems to have been contrived.”
The court sent the case back for more proceedings, leaving the 2020 census in a state of uncertainty—though if the deadline for finalizing the form is July 1, as census officials said this week, the question won’t be on it. However in at least one government filing, a census official gave the final date as Oct. 31.
Three different U.S. district judges have ruled that including the question was unlawful, with each finding that Commerce Secretary Wilbur Ross had not provided the public with his real reasons for doing so.
The Supreme Court’s ruling, which comes at a time of deeply divided immigration politics, could have considerable ramifications for the U.S. population count, as well as the drawing of congressional districts and the allocation of more than $600 billion in federal funds that are based on census data.
The census, mandated by the Constitution, counts all U.S. residents, regardless of citizenship or residency status.
A group of 18 states that sued Mr. Ross, as well as some career Census Bureau staffers, said adding a citizenship question would dampen response rates in immigrant-heavy communities, even in households with legal residents. If that happens, those communities could see a smaller piece of the federal pie, both in political representation and government funding.
The Trump administration said Mr. Ross, whose department oversees the Census Bureau, had the legal authority to include the question and determined that the benefits of having the citizenship data outweighed the potential of a lower response rate. It also pointed to earlier census surveys in the nation’s history that had asked about citizenship.
Mr. Ross’s explanations for adding the question have shifted over time. He and other Trump administration officials have said that census citizenship data would help the Justice Department with its efforts to comply with the Voting Rights Act, which protects minority voting rights.
Legal challengers in the case have said the administration’s reasons were the opposite—to dilute minority representation—and they said additional evidence has come to light recently that supports their claims. A Maryland federal judge this week said that evidence, which came from the files of a GOP political consultant who died last year, “potentially connects the dots between a discriminatory purpose—diluting Hispanics’ political power—and Secretary Ross’s decision.”
The evidence wasn’t directly before the Supreme Court when it took up the case, though it has received additional legal filings from both sides in recent weeks. New lower court proceedings are pending, though it isn’t clear what impact, if any, those will have after the high court’s ruling.
In April when the Supreme Court heard oral arguments on the census, President Trump said Americans deserved to know how many citizens were among those residing in their country.
Federal law prohibits the Census Bureau from sharing survey answers with federal immigration authorities, but a survey commissioned by the bureau last year found that asking about citizenship could be a substantial barrier to getting people to participate.
The whole country hasn’t been asked about citizenship on the decennial survey since 1950, but the government in recent years has asked a smaller sample of U.S. residents about their status.
The citizenship question touches on the broader immigration agenda that has been a central focus of the Trump presidency. Mr. Trump has barred travel by people from certain Muslim-majority countries—a ban the Supreme Court upheld last year. Mr. Trump’s administration also has attempted to limit immigrant claims for asylum; tried to cancel Obama-era benefits for illegal immigrants who came to the U.S. as children; and sought to build new barriers on the southern border. All of those efforts remain tied up in the courts.
Kushner’s immigration plan is a version of a discriminatory effort from more than a century ago
It’s a stretch to place the names of Jared Kushner and Henry Cabot Lodge in the same sentence; it’s difficult even to imagine that Lodge, the aristocratic Massachusetts senator who dominated the nation’s immigration debate from the 1890s into the 1920s, would give Kushner the time of day. But Kushner’s new immigration plan, aimed at reducing immigration from specific nations through the virtual elimination of what he and others have disparaged as “chain migration,” and the simultaneous valorization of the highly educated, is simply a version of a blatantly discriminatory effort Lodge initiated more than a century ago.
A man of uncommon refinement and even greater arrogance, Lodge was a Harvard PhD., the erudite author of more than a dozen books and, in many ways, the archetype of the Boston Brahmin of a century ago. His friend Thomas B. Reed, speaker of the House in the closing years of the 19th century, said Lodge arose from “thin soil, highly cultivated.” Lodge himself celebrated his fellow Brahmins for “their intense belief in themselves, their race, and their traditions.” His idea of the west, said another colleague, was Pittsfield, Mass. Look at John Singer Sargent’s remarkable likeness of the young Lodge that hangs in the National Portrait Gallery. You almost feel you are despoiling him by your very presence.
As well you might have been, if you were Italian, or Greek, or a Russian Jew or from any of the other national groups he had in mind in 1895, when he rose on the Senate floor to introduce the first restrictive immigration bill aimed at Eastern and Southern Europeans. The widening streams of emigres pouring out of the impoverished lands between the Baltic and the Mediterranean had broadened to flood stage, and Lodge determined that the best way to keep them out was to make them submit to a literacy test.
Aware of the scant educational opportunities in most of these countries, he told his fellow senators that his bill “will bear most heavily upon the Italians, Russians, Poles, Hungarians, and Asiatics, and very lightly, or not at all, upon English-speaking emigrants.” And, he argued, why should it be otherwise? “The races most affected” by his test, he explained, were those “with which the English-speaking people have never hitherto assimilated, and are alien to the great body of the people of the United States.”
Lodge’s talk was a hit. His closest friend, Theodore Roosevelt — at the time the New York City police commissioner — called it “an A-1 speech,” which pleased Lodge greatly. He was probably even more delighted with the reaction of the “Russian-Nihilistic Club” of Chicago, which burned him in effigy.
Eagerly endorsing the House version of the bill, Lodge’s Massachusetts colleague Rep. Elijah A. Morse declared himself delighted to see that it would exclude “undesirable immigration” from “southern Europe, from Russia, from Italy, and from Greece” — people, he said, who brought to the United States little else than “an alimentary canal and an appetite.”
Lodge’s literacy test bill passed with ease. But on President Grover Cleveland’s very last day in office, he struck it down with a veto, and there were not enough votes in the Senate to override.
Over the next 20 years, Lodge and his colleagues tried again and again, introducing a version of the literacy test into nearly every Congress. Three times it was approved by both chambers; three times it was struck down by veto. Only with anti-European fervor spiking on the brink of World War I, and new theories of “racial eugenics” shaping public debate, was it finally enacted over President Woodrow Wilson’s second veto, in 1917.
But for the anti-immigrationists, the new law was too little too late, and rendered ineffective by a shapely irony: Its two-decade presence on the congressional front burner had encouraged the education of the very people he wished to keep out. The Immigration Restriction League executive committee reported the baleful news that the Italian government was “spending millions on their schools in the last few months in view of the pending bill.” An IRL official wrote, “It is probable that primary schools will be presently established in many parts of Europe,” and consequently the newly enacted literacy test “is likely to diminish in value as a means of restriction as time goes on.”
A few years later, the xenophobes finally got what they wanted when Congress enacted the Immigration Act of 1924, which didn’t mess with half-measures: It slashed immigration by means of brutal quotas aimed at precisely those countries Lodge had singled out nearly three decades earlier. Where once more than 220,000 Italians arrived each year, the number was reduced by the new quota to fewer than 6,500. In 1921, the lands comprising most of the former Russian Empire had sent nearly 190,000 emigrants to the United States; the 1924 law accommodated exactly 7,346.
For the next 41 years, this brutally exclusionary act remained in place, shaping the composition of the nation, and dooming thousands — if not millions — to deprivation and death. When it was finally revoked by Congress in 1965, President Lyndon B. Johnson signed the new law on Liberty Island, in the shadow of the great statue that had been designed to welcome the unwanted. Had he chosen to give a history of what the 1924 act had been intended to do, Johnson might have invoked the words that Cleveland used in his veto message back in 1897: The literacy test,Cleveland had said, was “the pretext for exclusion.”
I don’t think Lodge would have disagreed, nor, if he’s being honest with himself, would Kushner. A plan that sets up “educational standards” as the primary benchmark for immigration isn’t likely to certify too many people fleeing from, say, Honduras or Yemen. Reeling in the numbers of immigrants granted priority to reunite with family members already here will similarly disadvantage much of Latin America, Africa and the Middle East. Jared Kushner — and Stephen Miller and President Trump — likely know very little about Henry Cabot Lodge. But he would be proud of them.