Detroit area watching as Supreme Court justices tackle census
Washington — The House gets a relatively rare chance to directly address the Supreme Court on Tuesday in a legal showdown about whether the Trump administration can add a citizenship question to the 2020 census.
The case is one of the most significant for members of Congress during the current Supreme Court term. The census results determine how many House seats each state gets and affect how states redraw congressional districts. The results are also used to distribute billions of dollars from federal programs that are based on population count to state and local governments.
The House cited those reasons when it asked for time during oral argument. The lawmakers plan to argue that it is up to Congress to ensure an accurate count, and a federal law called the Census Act limits the discretion of Commerce Secretary Wilbur Ross to add a question about whether each person being counted is a citizen.
“The decennial census is a vital cornerstone of our democratic institutions, and none more so than the House of Representatives,” House General Counsel Douglas N. Letter wrote when asking for the time. “The House as a chamber depends upon an accurate census for its institutional integrity, and its membership will be affected by the outcome of this case.”
The justices gave Letter a 10-minute slice of the High Court action. Also arguing Tuesday will be U.S. Solicitor General Noel Francisco, New York Solicitor General Barbara Underwood and Dale Ho of the New York Immigration Coalition.
Such an accommodation for lawmakers has happened five times in the past 12 years: for the House in a case about President Barack Obama’s immigration executive action in 2016; for 45 senators in a 2013 case about Obama’s presidential recess appointments; for Kentucky Republican Sen. Mitch McConnell in two campaign finance cases in 2013 and 2009; and the Senate in a 2007 employment discrimination dispute.
In the census case Tuesday, the Trump administration contends that Ross followed the proper decision-making process to add the question, which has been used off and on in previous censuses.
In a book-length opinion in January, U.S. District Judge Jesse Furman said Ross committed a litany of violations of the federal law that governs administrative agencies. That law requires officials to make major decisions through a reasoned process and to give an honest explanation for their actions.
Ross "failed to consider several important aspects of the problem; alternately ignored, cherry-picked, or badly misconstrued the evidence in the record before him; acted irrationally both in light of that evidence and his own stated decisional criteria; and failed to justify significant departures from past policies and practices," Furman wrote.
Ross wrote in a March 2018 memo that Congress delegated the authority for census questions to him, and he would add the citizenship question based on a Justice Department request for improved data to enforce the Voting Rights Act of 1965.
A government witness testified in the case that a citizenship question would reduce census responses among noncitizen households by at least 5.8%, or about 6.5 million people, the New York Immigration Coalition told the justices in a brief.
The House is not a party in the case, but it says the Constitution gave Congress the duty to oversee the counting of “the whole persons in each State,” and the Commerce Department departed from what Congress intended.
The attempt to add the question “outside the agency’s ordinary processes and against the undisputed evidence that doing so would undermine the very purpose of the decennial census, the Department has disregarded both the substantive limitations and procedural safeguards that Congress created,” the House told the justices in a brief.
Those who oppose a citizenship question say it could result in a census undercount in areas with large non-citizen populations that could shift congressional districts and shift federal funds away from those communities. California, Texas, Arizona, Florida, New York and Illinois all are at risk of losing at least one seat in the House of Representatives, according to Furman.
In recent decades, the question has gone on the long-form census questionnaire, which goes to about 1 in 6 households, but not on the short form that most households get. And the citizenship question is on the annual American Community Survey questionnaire sent to approximately 1 in 38 households since that survey began in 2005.
According to the U.S. Census American Community Survey in 2017, about 52 percent of survey respondents in Oakland County were foreign-born and non-citizens, said Kurt Metzger, a demographer and director emeritus of Data Driven Detroit. The percentage was 46 percent for Wayne County and 36 percent for Macomb County,
That represents nearly 200,000 responders in the tri-county area who are foreign-born and non-citizens.
“It’s going to affect a large number of communities,” Metzger said. “You tend to think of off-hand Dearborn, Hamtramck and Detroit, but Madison Heights, Canton Township, there are so many communities with foreign-born population, many of whom are not citizens.”
The city of Detroit will be watching as the Supreme Court weighs in on the Trump administration’s effort to place the citizenship question on the 2020 U.S. census.
“For Detroit, so much is riding on this count that any kind of negative impact is critical for us,” said Vicky Kovari, Detroit's 2020 census campaign executive director. “It’s of great concern to us. We’re looking at it closely and hoping that they won’t include the question on the census.”
The citizenship question would pose another challenge in addition to the internet access gap and how fluid occupancy can be in the city, she said.
Areas in Detroit with large concentrations of immigrants include Southwest Detroit with its Latino and growing Yemeni population and the Arabic-speaking communities in neighborhoods that border Dearborn. There is also a Bangladeshi and Eastern European population living near Hamtramck, Kovari said.
“All those communities feel impacted by this question,” she said. “We’ll be ready to work harder in those communities, especially recruiting folks who speak those languages to really talk to folks. I think we’ll be ready if we have to do a more intensified effort there. We’re hoping for the best result, but whatever the result, we’ll be pressing on.”
Kovari said the city is already working to inform people that the government adheres to a 72-year rule regarding the confidentiality of the information collected. The personal information collected is not shared with other federal agencies, companies or individuals.
Earlier this month, the city kicked off its 2020 Census campaign with its first focus on educating the public on the impact that the census will have on programs such as Medicaid, Title I and food programs.
With the census bureau saying it needs to start printing questionnaires this summer, the High Court is hearing the case on an expedited basis, directly reviewing Furman’s decision and bypassing the appeals court level. A ruling is likely by late June.
Detroit News Staff Writer Candice Williams, Bloomberg and McClatchy contributed.