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Federal Judge Orders Removal Of Citizenship Question From 2020 Census

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A federal judge in New York barred the Trump administration from including a citizenship question on the 2020 census questionnaire.

The decision appears to have significant implications for a related matter the Supreme Court is poised to decide in the spring.

“The attempts by the Trump administration to mandate a question about citizenship were not rooted in a desire to strengthen the census process and would only undermine our immigrant communities,” New York Attorney General Letitia James said in a statement. “Inciting fear in our residents is not only immoral, but also ill-conceived.”

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The Constitution mandates a census every ten years to apportion seats in the House of Representatives among the states. Population is also used as a basis for rewarding federal aid.

A coalition of Democratic cities, states, and interest groups challenged the addition of a citizenship question to the census questionnaire in April 2018, warning it would discourage minority participation. An incomplete survey of minority populations, the plaintiffs feared, would result in diminished federal funds and congressional representation for urban areas.

The plaintiffs charged that the addition of the citizenship question violated the Constitution and the Administrative Procedure Act (APA), a federal law establishing protocols for the issuance of regulations.

In his Tuesday decision, U.S. District Judge Jesse Furman accepted the plaintiffs’ APA claims while rejecting their constitutional arguments.

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“[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 — a veritable smorgasbord of classic, clear-cut APA violations,” Furman wrote.

Elsewhere in the decision, Furman said Ross was not truthful about his motives for adding a citizenship question. Though the secretary initially said publicly that the question was added at the request of the Department of Justice, subsequent evidence showed Ross discussed the matter with White House aides far earlier than initially understood.

“Finally, and perhaps most egregiously, the evidence is clear that Secretary Ross’s rationale was pretextual — that is, that the real reason for his decision was something other than the sole reason he put forward in his memorandum,” Furman wrote.

Former President Barack Obama elevated Furman to the federal bench in 2012.

The plaintiffs sought a deposition from Commerce Secretary Wilbur Ross at a previous phase of the litigation. The Department of Commerce oversees the Census Bureau, and Ross himself authorized the addition of the citizenship question. Though Furman authorized the Ross deposition, the Supreme Court intervened to stop it in October 2018.

Shortly thereafter in November 2018, the high court agreed to decide what evidence Furman could rely upon when making his decision. When plaintiffs challenge agency action in court, the agency itself generally turns over the body of documents and evidence it relied upon to make its decision. Those writings are called the administrative record. In most cases of this nature, the court will make its decision based only on the administrative record.

However, Furman allowed the plaintiffs to gather evidence beyond the administrative record to challenge the citizenship question. The Supreme Court agreed to decide whether that decision was correct.

The Justice Department may appeal Furman’s decision.

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