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House gets its say as Supreme Court takes up census citizenship question

Stakes are high as decision could affect how many House seats each state gets

The House general counsel gets 10 minutes to speak to the justices Tuesday on why Commerce Secretary Wilbur Ross cannot add the citizenship question to the 2020 census. (Bill Clark/CQ Roll Call file photo)
The House general counsel gets 10 minutes to speak to the justices Tuesday on why Commerce Secretary Wilbur Ross cannot add the citizenship question to the 2020 census. (Bill Clark/CQ Roll Call file photo)

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.”

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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 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 one in 38 households since that survey began in 2005.

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.

But a federal district judge, in a challenge from states and civil rights groups, found that Ross’ decision was unlawful for several reasons and stopped the Commerce Department from adding the question.

The challengers argue that the question would deter households with noncitizens from participating in the census for fear that their information would be shared with other parts of the government, immigration authorities, for example. And a short count of noncitizens would harm communities with large numbers of immigrants and ultimately benefit Republicans.

A government witness testified in the case that a citizenship question would reduce census responses among noncitizen households by at least 5.8 percent, 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.

The Supreme Court will make a decision by the end of June, which is not only when the current term ends but also the deadline for the government to finalize the census questionnaire.

House Judiciary Chairman Jerrold Nadler and ranking member Doug Collins wrote the Supreme Court asking for the release of an audio recording of the argument later the same day. The Supreme Court denied that request, which means the audio would be available Friday, April 26.