Supreme Court girds for fight over Trump census citizenship question

[April 19, 2019]  By Andrew Chung

NEW YORK (Reuters) - Sitting on a working-class commercial strip in the shadows of an above-ground rail line, a group called Make the Road New York's busy street-level offices are easy to miss. But its mission to support and advocate for immigrants is front and center.

A sign on its front door in a heavily Hispanic neighborhood of the borough of Queens warns law enforcement officers not to enter without a warrant. Its colorful lobby is filled with butterfly-shaped placards made for protests against the hardline immigration policies of President Donald Trump, a fellow New Yorker.

Its latest fight is to contest the Trump administration's contentious plan to add a citizenship question to the 2020 census, which the group has called a "racist attempt to intimidate, undercount immigrants."

The plan's legality will be tested on Tuesday in arguments before the U.S. Supreme Court, which has a 5-4 conservative majority.

The nine justices will consider whether Commerce Secretary Wilbur Ross, whose department includes the Census Bureau, violated a federal law called the Administrative Procedure Act and the U.S. Constitution's mandate to enumerate the nation's population every 10 years. A ruling is due by the end of June.

On Jan. 15, Manhattan-based U.S. District Judge Jesse Furman ruled against the administration and blocked the use of the question. Two other courts also have blocked the question since then.

The case comes before the court in a pair of lawsuits, one filed by a group of states and localities led by New York state, and the other by immigrant rights groups including Make the Road.

"We have seen a lot of anti-immigrant rhetoric and a lot of attacks on our communities, and this is just another one on a long list," said Theo Oshiro, Make the Road's deputy director, who is leading its efforts on the census.

Opponents have called the question a Republican effort to frighten immigrant households and Latinos from participating in the census, leading to a severe and deliberate undercount, diminishing the electoral representation of Democratic-leaning areas in Congress and costing them federal funds. This would benefit Trump's fellow Republicans and Republican-leaning parts of the country, they said.

The Constitution mandates a census every 10 years. The official population count is used to allocate seats in the U.S. House of Representatives and distribute some $800 billion in federal funds.

The Trump administration said the citizenship question will yield better data to enforce the Voting Rights Act, which protects eligible voters from discrimination. While only U.S. citizens can vote, non-citizens comprise an estimated 7 percent of the population.

A number of key services that Make the Road provides, from adult English language classes to helping people find health insurance, could be put at risk, Oshiro said.

"The impact would be dire," Oshiro added.

Furman found that Ross concealed his true motives for adding the question. The judge said the evidence showed that Ross and his aides convinced the Justice Department to request a citizenship question, and that he made the decision despite Census Bureau evidence that such a question would lead to lower census response rates and less accurate citizenship data.

The administration appealed the case directly to the Supreme Court, bypassing a federal appeals court, given the need to resolve the matter before census forms are printed in the coming months.

People wait in line outside the U.S. Supreme Court to hear the orders being issued, in Washington, U.S. March 18, 2019. REUTERS/Erin Scott/File Photo

In a brief to the justices, U.S. Solicitor General Noel Francisco, who argues the administration's position at the Supreme Court, called the plaintiffs' claims "speculative fears that the government itself will act unlawfully by using answers to the citizenship question for law-enforcement purposes."

Francisco called the citizenship question "wholly unremarkable" and disputed that it would lead to less accurate data.

Citizenship has not been asked of all households since the 1950 census but has featured since then on questionnaires sent to a smaller subset of the population.

BEEHIVE OF ACTIVITY

On weekday afternoons, Make the Road is a beehive of activity, its clients a mix of citizens and non-citizens. The lobby is packed, with staff providing services such as child care, food assistance and legal advice.

The adult English learners are jammed into a small classroom. When asked about the census, most are hesitant to offer an opinion.

One 36-year-old woman, who works as a house cleaner and gave her name only as Nelly, said people are concerned about the confidentiality of the census and if their information could be used against them or family members. She said she would not fill out the census if the citizenship question were included.

"Census efforts have always been hard in immigrant communities, even without the citizenship question," Oshiro said. "They are fearful in particular of sharing their information with immigration enforcement agencies, especially with what folks have seen and heard from this administration, the rhetoric around immigration and the ramping up of enforcement."

Oshiro's organization has mounted outreach efforts in subways and other places emphasizing the importance of the census to protecting federal funding and ensuring political power.

In the lawsuit spearheaded by New York state, the judge found a "veritable smorgasbord" of violations of the Administrative Procedure Act. The separate suit by the New York Immigration Coalition, Make the Road and other civil rights groups, represented by the American Civil Liberties Union, also claimed that the administration was discriminating against non-white immigrants. The judge said there was no evidence of that.

The Trump administration "does not like a system where everybody is counted in America," said ACLU attorney Dale Ho, even though that is "the bedrock of our constitutional system."

A number of Republican state attorneys general, led by Mike Hunter of Oklahoma, backed Trump's administration, saying more detailed citizenship data could reduce litigation over race-based voting rights claims, adding that immigrants' fear of the question "is no reason to grind the census to a halt."

(Reporting by Andrew Chung; Editing by Will Dunham)

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