The Fight Over the Census Citizen Question Isn't Over Yet

By Joseph diGenova
July 10, 2019
NYDailyNews.com

The fight over returning the question “are you a U.S. citizen?” to the U.S. Census in 2020 is not over.

In the aftermath of a U.S. Supreme Court ruling that put the question in jeopardy and an email from a Justice Department staff attorney — who the DOJ is now trying to pull off the case — claiming that “the decision has been made” to leave the question off the census, President Trump is out in front fighting.

In a series of tweets, the president made clear that, as far as he and Attorney General Bill Barr are concerned, the decision has not “been made.” “We are absolutely moving forward,” the president wrote, later citing a Fox News article reporting that Barr “sees a pathway" to add the question.

Fortunately — and contrary to the triumphant gloating of liberals who oppose the citizenship question — the Supreme Court’s decision last month left the Trump administration plenty of room to maneuver.

The court actually rejected most of the challenges brought by the Democrat-controlled state governments and liberal advocacy groups that are suing to block the question.

Not one justice found the citizenship question itself — which appeared in one form or another on the decennial census since the early 19th century and is still asked of a smaller sampling of Americans every year on the Census’ American Community Survey — unconstitutional. Nor did a single justice determine that Secretary of Commerce Wilbur Ross exceeded his authority under the Census Act.

Rather, Chief Justice John Roberts and the four liberal justices determined that the Justice Department’s stated reason for including the question — that it would improve administration of the Voting Rights Act — was not the real and complete story. It was, in their view, a pretext, even though it is a perfectly valid and sufficient reason.

This defeat, such as it was, is extremely narrow. “We do not hold that the agency decision here was substantively invalid,” Roberts wrote for his 5-4 majority. They simply “remanded” the case, asking the Commerce Department to show the “real” reason and assure the lower court that it’s not improper.

It was only the court’s four liberal justices who wrote separately and claimed that the question — “are you a citizen of the United States” — is itself “arbitrary and capricious.” Justice Stephen Breyer said he believes the citizenship question will “likely cause a disproportionate number of noncitizens and Hispanics to go uncounted,” and argued that this consideration, in effect, overrides the American public’s right to an accurate tally of the number of citizens in the country.

Roberts’ capitulation created what amounts to a court-sanctioned fishing expedition into thousands of administration documents to make sure nothing in them could be construed as “racist.”

“For the first time ever, the Court invalidates an agency action solely because it questions the sincerity of the agency’s otherwise adequate rationale,” Justice Clarence Thomas put it in his dissent, which was joined by Justices Samuel Alito, Brett Kavanaugh and Neil Gorsuch.

The Commerce Department, however, still has an opportunity to discard its “pretext” here and provide a more complete explanation of why they felt the question was needed.

Meanwhile, opponents of the citizenship question are not being called out on their own blatant pretext.

Everyone who opposes including a citizenship question on the census — the Democratic state officials and the organizations that filed the lawsuit, the district court judge who let this case proceed, the four liberal Supreme Court justices who tried to invalidate the question, the media who cheered their ruling, the Democratic politicians calling for the Commerce Department to throw in the towel — every single one of them is doing so for one reason and one reason only: They do not want the American people to know how many illegal immigrants are living here.

Every other reason they’ve put forward — the concerns about families being too terrified to fill out their secret and anonymized Census forms, the loss of federal funding for areas with large undocumented populations, the grand right-wing conspiracies — is a pretext, a lie. Liberals do not believe we have a right to know how many American citizens there are, and in any event, they want the line between citizen and non-citizen to be blurred into non-existence.

For almost 20 years, we’ve been told again and again that there are about 11 million illegal aliens in America. Where does this figure come from? The census, of course.

Every time pundits such as Ann Coulter point out how ridiculous it is to think that this figure wouldn’t budge for so long despite the hundreds of thousands of new illegal immigrants who cross our border every year, they’re called liars and xenophobes. Yet, when a group of scientists from Yale and MIT dug into the data last year, they found strong evidence that as many as 16.5 to 29.1 million illegal immigrants reside here.

The only way to get to the bottom of it all is with a census that asks every household how many citizens are living there, and then checking that data against our records on legal immigration. Americans broadly agree on this: Two-thirds of voters, including nearly half of liberal voters, support the inclusion of a citizenship question on the census. Even among Hispanic Americans, whom Democrats claim would be victimized by its reinstatement, 55% support the citizenship question.

As with most issues for the Democrats, that public support doesn’t matter, nor do the persuasive reasons all those people are convinced the question is worth asking. All that matters is the outcome in their naked pursuit of power.

President Trump knows how important this fight is, though, and he’s not giving up.

DiGenova was U.S. attorney for the District of Columbia. He is a founding partner of diGenova & Toensing, LLP.