On Tuesday, April 23, the Supreme Court heard oral arguments regarding the inclusion of a question tracking the citizenship status of respondents to the 2020 census. The question, announced in March 2018 by the Census Bureau, has been a matter of personal interest for Commerce Secretary Wilbur Ross since he assumed his post in the Trump administration. Though the Justice Department requested in December 2017 that the Department of Commerce add a question about citizenship to the census, emails show the question's inclusion had been on Ross's mind since at least May 2017, and that he had asked his staffers and Justice Department officials to find reasons meriting its inclusion.
At Ross's urging, the Justice Department made the claim that asking United States residents about their citizenship status was crucial to the enforcement of the Voting Rights Act. However, those opposed to the question argue that it will actually prove detrimental towards the communities the VRA, which was signed into law in 1965, is supposed to protect. In January 2019, a judge in New York's southern district found that Commerce Secretary Wilbur Ross had misled both his own department and the public at large about the including such a question, and therefore violated federal law; according to the same ruling, the department had also violated parts of the Census Act.
Nevertheless, the Supreme Court has until the end of the their term in June to decide on the question's inclusion, and many are worried that the majority conservative court will weigh in its favor. At least 12 states have already sued the Department of Commerce on the grounds that this question would almost certainly discourage potential respondents from participating. According to former New York state Attorney General Barbara Underwood, asking census respondents if they are U.S. citizens "will cause a decline in the response rate of non-citizens and Hispanics, to the detriment of the states and localities where they live." Such a decision would also mark the first time a question about citizenship has been included on the general census since 1950.
As the New York Times explains, the final census tally impacts everything from the number of congressional seats representing each state to the allocation of federal dollars for a variety of programs, including those that benefit everyone, regardless of citizenship status. But states and activists are concerned that residents would be so worried about how the government uses their census data, that they wouldn't respond to the census at all.
On its website, the Census Bureau explains that "by law, the Census Bureau cannot share respondents' answers with anyone — not the IRS, not the FBI, not the CIA, and not with any other government agency." But in November 2017, researchers within the Bureau issued a study that detailed a "recent increase in respondents spontaneously expressing concerns to researchers and field staff about confidentiality and data access relating to immigration," and pointed to the issues of "legal residency" and "the perception that certain immigrant groups are unwelcome" in the country. The field tests noted that many of these fears came from Spanish-speaking households in their test areas, though they also noted responses generated from interviews conducted in Arabic, Cantonese, Korean, Greek, Romanian, Russian, and Vietnamese, among other languages.
"The possibility that the census could give my information to internal security and immigration could come and arrest me for not having documents terrifies me," one respondent said in a Spanish-language interview.
The argument against the inclusion of a citizenship question cites the Latinx community in America as a key example of residents who might not respond to the census. Currently, Latinx people make up approximately 51 percent of the total immigrant population in the United States; that number does not distinguish between people's citizenship or documentation statuses. And given how much the Trump administration has been defined by its quest to build a wall at the border between the U.S. and Mexico, as well as Trump's xenophobic rhetoric against Mexicans specifically and Latinx people broadly, it's understandable why Latinx migrants would feel particularly targeted by questions about citizenship.
In December 2018, data from the Immigration and Customs Enforcement department (ICE) showed that arrests and deportation of non-citizens was rising, and a March 2019 report from TechCrunch revealed that ICE was using a license plate reader database to target immigrants, including in sanctuary cities. In July 2018, U.S. Citizenship and Immigration Services also implemented new guidelines that said documented immigrants could be deported under certain conditions.
During Tuesday's hearing, Trump appointee and United States Solicitor General Noel Francisco attempted to brush away these concerns by suggesting that if the Supreme Court rules against the addition of the question based on the fears that it would hinder responses from immigrants and the Latinx community in particular, other groups could conspire for the removal of other questions by boycotting the census in future years.
"Are you suggesting that Hispanics are boycotting the census?" Sotomayor interjected. "Are you suggesting they don't have, whether it is rational or not, that they don't have a legitimate fear?"
"Not in the slightest, Your Honor," he replied.