Is the Census Citizenship Question Constitutional?
Until recently, most Americans probably didn’t realize that the U.S. Census was mandated by the Constitution. Most of us have had the luxury of completing the census form once every ten years without giving it much thought. However, the decision to include a question about citizenship on the 2020 census has turned a spotlight on the once-routine inventory.
The U.S. Department of Justice says citizenship information is required to effectively enforce the Voting Rights Act. But, opponents of the question say that’s not the administration’s real motivation, that the Act has long been enforced without this type of Census data, and that the risk associated with asking about citizenship is greater than any potential benefit.
Why Do So Many Object to a Question about Citizenship on the Census?
Questions about citizenship have been included on past Census questionnaires. So, what’s all the fuss about?
Speaking as a constitutional law expert, the short answer is that many advocates and officials fear that the current administration’s history of policies unfriendly to immigrants will have a chilling effect on the Census. That is, opponents of the question fear that because many non-citizens are anxious and distrust the Trump administration, they will be reluctant to participate in the Census. Understanding why that matters requires some background … let me explain.
The Importance of U.S. Census Data
The U.S. Constitution mandates an “enumeration” of people within the United States at least once every ten years. Per the Constitution, this count is used to determine the number of Representatives apportioned to each state, and taxes. As a practical matter, however, U.S. Census figures play an even more significant role in our lives.
U.S. Census data factors into the distribution of more than $675 billion in federal funds to state, local and tribal governments each year. In addition, state and local governments and private parties use the information gathered in the Census for a variety of important purposes.
Some examples of common uses, supplied by the U.S. Census Bureau, include:
· Emergency response planning
· Allocation of public health funding
· Decisions about where to build new roads
· Decisions about where to place schools and job training center
· Allocation of services for the elderly
· Economic development initiatives
· Pursuit of grants and funding
· Assessment of locations by business and prospective businesses
In short, U.S. Census data has the potential to impact virtually every area of our lives, from representation in Congress to access to public transportation to access to education and healthcare.
Why Would a Question about Citizenship Impact Census Response?
It’s not yet clear exactly how significant the impact of the citizenship question might be on Census participation. However, Trump administration actions like the travel ban, the termination of the DACA program, and increased deportation of long-time, law-abiding foreign residents of the U.S. have left many non-citizens uneasy about drawing attention to their status.
This climate of mistrust has raised concerns that many will avoid responding to the census in order to stay under the radar. Test data confirms these concerns, with participants voicing concerns about deportation and reporting that various immigrant communities are frightened by the idea of providing information to the government.
Why Does the Trump Administration Want the Citizenship Question?
The Department of Justice says the data is necessary to enforce Section 2 of the Voting Rights Act, which prohibits discrimination at the polls. But, many believe that the administration’s real goal is to make non-citizens fearful of participating in the Census. Enforcement of the Act hasn’t been a priority with the Trump team to date, and the other possible explanation is hard to ignore. If non-citizens are too apprehensive to stand up and be counted, states with large non-citizen populations will be underrepresented in Congress and underfunded in their communities.
Read Related: Sujit Choudhry on Today’s Political Climate: A Disintegrating Democracy
What Does the Constitution Say about the Census?
Although the U.S. Constitution requires that a census be conducted at least once every ten years, the document provides little additional guidance.
The text of Article I, Section 2, Clause 3 was modified by Section 2 of the 14th Amendment, providing that:
Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed.
While there is some present debate about whether these “numbers” were intended to include non-citizens, it is worth noting that Section 1 of the 14th Amendment refers specifically to citizens. It seems unlikely that the shift to “whole number of persons” in the following section was accidental.
Regarding actual collection of the data, Article I, Section 2 says only:
The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct.
In other words, the Constitution provides no direct guidance on the questions that may be asked, and delegates the process to Congress. How, then, could the question be unconstitutional? Let’s dig a little deeper.
The Argument for Unconstitutionality of the Census Citizenship Question
In its simplest form, the argument that the citizenship question is unconstitutional suggests that by deterring participation, the inclusion of the citizenship question will impede the Census Bureau from procuring the “actual Enumeration” required by the U.S. Constitution.
On March 26, the State of California filed suit in the U.S. District Court for the Northern District of California, requesting a declaratory judgment stating that inclusion of the question violates Article 1, Section 2, Clause 3 of the U.S. Constitution, and also violates the federal Administrative Procedure Act (APA). The state is also seeking preliminary and permanent injunctions barring inclusion of the question.
One week later, a coalition of 18 state Attorneys General, six cities, and the bipartisan U.S. Conference of Mayors filed a similar suit in the U.S. District Court for the Southern District of New York. The outcome of these cases isn’t the only open question at this point. It is also unclear to what degree the publicity surrounding the question may already have deterred participation among non-citizens.
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