By Bryce Wachtell (PO ’21)
The Trump Administration recently proposed the inclusion of a citizenship question in the decennial U.S. census, a move that sparked swift backlash and lawsuits in at least twelve states including California and New York. Though the administration’s decision has been swept up in a hurricane of zealous partisanship, the legal bedrock of arguments for and against the census change remains obscure.
In short, those opposed say that inclusion of a citizenship question will wrongfully deter undocumented immigrants from responding, which would lead to inaccuracy in the census in violation of the enumeration clause. Many believe the question is simply an attempt to decrease funding and representation for more urban and liberal districts, where a concentration of undocumented immigrants would disproportionately be deterred from participation in the census.
Democrats like Xavier Becerra, the attorney general of California, argue that the addition of a citizenship question will discourage undocumented immigrants from participating in the census. Article 1 Section 2 of the Constitution says the census should entail an “actual enumeration” of the population—Becerra contends that deterring undocumented immigrants from answering undermines the accuracy (or “actuality”) of the count required by the founders.
In an era filled with anti-immigrant rhetoric, the fear is that the citizenship question will pave the way for a program to identify and deport millions of undocumented immigrants. Technically, undocumented immigrants should not be concerned about their status being shared if the question is included on the census. As the Census Bureau states on its website, “It is against the law for any Census Bureau employee to disclose or publish any census or survey information that identifies an individual or business. This is true even for inter-agency communication: the FBI and other government entities do not have the legal right to access this information.” Even still, the lingering perception of an increasing volatile and politicized judiciary may deter undocumented immigrants from participating in the census for fear of challenges to this statute. Though these immigrants’ fear is real, the motives behind the change may be more explicitly political.
Critics assert that the change is a political move ultimately aimed at punishing Democratic districts for harboring undocumented immigrants The change was initiated by the Department of Justice and confirmed by the Department of Congress; the heads of both entities are appointed by the president, giving the Executive great, albeit indirect, power over the census. In previous years, polarization of the census has been successfully hampered. However, the census is critical for determining the distribution of over $400 billion dollars annually for all kinds of services, making it a dangerous tool to potentially leverage political capital. Democrats fear that an inaccurate count that omits several million undocumented immigrants will disproportionately affect their constituents. More liberal, urban districts—where deterred undocumented immigrants are concentrated—would unfairly lose house representatives and federal dollars to rural, conservatives regions—where deterred undocumented immigrants are fewer in number.
Those in favor of the change—the Trump administration and Republican party—cite historical precedent in support of their proposal. For 130 years, the federal government included a question about citizenship on the census, with no legal challenge. Likewise, there is no empirical evidence that inclusion of the question might materially alter undocumented immigrant participation in the census. (Importantly, this lack of evidence should not be misconstrued for evidence in support of the change.)
Though these arguments refute criticism of the census alteration, they do not explain what actually prompted the proposal in the first place, or why a citizenship question is necessary. The best justification yet presented is that added information about citizenship is good for the information’s very sake.
Though legislators are under no legal obligation to present a need for their statutory initiatives (including changes to the census), if such initiatives can be interpreted as unconstitutional, they do not stand.
Once the aforementioned lawsuits by the various state attorneys general reach a judge, the question in the census-citizenship case will be this: is the DOJ, DOC, and Trump administration making this change as a normal legislative move that falls within their right, or is the change—as most liberal states suspect—an attempt to discourage immigrant participation and decrease federal funding to political enemies? If the enumeration clause should be interpreted most directly, it seems as though the opposition to the change has a strong legal case.
Whatever the answer to such a question, huge stakes—electoral college seats and billions in funding —will be on the line.