Intelligencer staffers Benjamin Hart and Ed Kilgore discuss the effects of a possible citizenship question on the 2020 Census in the aftermath of Tuesday’s Supreme Court arguments on the subject. (This chat originally appeared in the Intelligencer newsletter; sign up below.)
Ben: At the Supreme Court today, the five conservative justices signaled support for the Trump administration’s controversial decision to add a citizenship question to the upcoming Census, appearing to buy (or pretend to buy) the administration’s extremely questionable line that this addition will strengthen enforcement of the Voting Rights Act. The liberal justices — as well as Census officials, many corporations, and others — fear that adding a question will lead to a severe population undercount, with noncitizens understandably hesitant to advertise their status to the government. If SCOTUS does decide the way it looks like it’s going to, how much damage do you think their decision will do?
Ed: A lot, for a long time. SCOTUS was the last decision point on this issue; its review was expedited because the Census questions will be formulated in just a couple of months. So assuming SCOTUS comes back quickly with the decision we now expect, it’s a done deal, and will lock up an undercount for a decade.
That affects reapportionment and redistricting (and indirectly, electoral votes) most obviously but also federal funding formulas based on population data. The government’s own estimates are that 6.5 million people won’t participate in the Census if there is a citizenship question. States with large immigrant populations will be hit especially hard.
Ben: This seems to be a transparent attempt to systematically deprive blue-leaning areas of representation. Won’t this screw over Republican-leaning districts, too? Won’t there be an undercount in fast-growing areas of Texas, say, where there are a lot of undocumented immigrants?
Ed: Without question, Texas as a whole will take a hit. But I’m not sure areas with large and rising immigrant populations lean R at a substate level. Even if I’m wrong about that, Republicans will be happy to sacrifice here and there for the broader good of their honkified party.
Ben: And that broader good will likely include a slightly better Republican congressional map going into 2022.
Ed: Yep, and every little bit could matter for a long time. Or ten years, anyway.
Ben: Commerce secretary Wilbur Ross demanded that the question be added over objections from Census staff, who warned about the undercount. His justification for doing so — to enforce a Voting Rights Act that this administration has otherwise shown no enthusiasm for — is flimsy at best. But the conservative justices’ argument seems to be that this is an area where the administration’s prerogative is all that matters. Do you think that’s a reasonable way of looking at this?
Ed: No. Control over the Census is constitutionally granted to Congress; the president’s powers are delegated and subject to statutory conditions. Regarding the Voting Rights enforcement rationale: The chief justice stressed this during the oral arguments. That’s pretty rich given Roberts’s role in gutting the VRA in the Shelby County v. Holder case in 2015.
Ben: The shape of this legal saga seems quite similar to last year’s travel ban case. The Trump administration crafts a policy that doesn’t really pass the smell test, it gets knocked down repeatedly in federal court, they appeal it to the Supreme Court, and the five conservatives say “whatever.”
Ed: The legal analysis is a bit more subtle than that, Ben, but you could look at the results that way.
Ben: Your invocation of my first name tells me you think I’m being a little glib here.
Ed: Just a tad. Then again, from SCOTUS right down to low-information voters, there’s a strong tendency to tailor one’s views on executive powers according to the identity of the party controlling the White House. Conservatives hated strong executive powers when Barack Obama was president. You know, DACA and all that.
Ben: Right. But I do think the Obama administration tried a little harder to make their policies pass legal muster.
Ed: Well, Obama wasn’t in the habit of attacking the independence of the judiciary the way Trump does whenever he gets crossed by a federal judge. He was a law professor; Trump gets all his information from Fox & Friends.
Ben: With the prospect of this undercount looming, do Democrats have any real recourse? Legally, they’re at a dead end, but could they mount a public-information campaign to assure nervous residents that their information won’t be used to deport them?
Ed: Yeah, I guess they and perhaps more importantly immigrants-rights advocates and community leaders could conduct a campaign. But I’m not sure how strongly they can bring themselves to argue, “Don’t worry, the Trump administration wouldn’t dare harass you or arrest you illegally!”
Ben: Yes — given what we’ve seen over the last couple years, it’s not an argument that’s likely to convince people.
Ed: The record in this case provided evidence that this whole citizenship question was cooked up by Wilbur Ross in consultation with Stephen Bannon and Kris Kobach. Not very reassuring, is it?
Ben: Not on any level.
Ed: The more I think about it, the skewering of Census data and the decision that will apparently make it possible are a lasting legacy from Trump even if he loses in 2020. Kinda like an STD after a toxic affair.
Ben: The image of any kind of affair with Trump is nausea inducing.
Ed: I didn’t intend that to be a pleasant image.