By Jess Bravin and Janet Adamy
WASHINGTON—The Trump administration dropped plans to add a citizenship question to the 2020 census form, a turnaround after days of defiant statements following last week’s Supreme Court decision to halt the query.
“We can confirm that the decision has been made to print the 2020 decennial census questionnaire without a citizenship question, and that the printer has been instructed to begin the printing process,” a Justice Department attorney told lawyers for New York state and the American Civil Liberties Union by email Tuesday afternoon. She provided no explanation, and neither did a Justice Department spokeswoman in Washington, who confirmed the exchange but declined to comment further.
The decision to stop pursuing the citizenship question was made just hours before it became public, a person familiar with the matter said.
The 10-year census is used to allocate hundreds of millions of dollars in federal funds, reapportion congressional representation and draw district boundaries.
A day before the decision was made public, a senior administration official had said the administration was exploring its legal options, within the terms of the Supreme Court decision, for including a citizenship question on the census.
Late Tuesday, Mr. Trump wrote on Twitter that it was a “very sad time for America when the Supreme Court of the United States won’t allow a question of ‘Is this person a Citizen of the United States?’ to be asked on the #2020 Census!”
“I have asked the Department of Commerce and the Department of Justice to do whatever is necessary to bring this most vital of questions, and this very important case, to a successful conclusion,” Mr. Trump added, without elaborating on what further options the administration was pursuing.
The government’s stated reason for adding the citizenship question was to help protect minority voting rights. Three federal courts hearing challenges found that claim a pretext, and on Thursday, in an opinion by Chief Justice John Roberts, the Supreme Court agreed the rationale “seems to have been contrived.”
Because federal law requires candor and reasoned basis for policy changes, the 5-4 decision blocked the question until the Commerce Department, which oversees the census, remedied its decision-making process.
Commerce Secretary Wilbur Ross said in a statement, “I respect the Supreme Court but strongly disagree with its ruling regarding my decision to reinstate a citizenship question on the 2020 Census.”
He added, “The Census Bureau has started the process of printing the decennial questionnaires without the question. My focus, and that of the Bureau and the entire Department is to conduct a complete and accurate census.”
The government had asserted that production of the questionnaire would have to begin in July, a factor that led the Supreme Court to agree to take the census case directly from a New York federal district court rather than follow regular procedure in which a federal circuit court hears the appeal first.
“While the Trump administration may have attempted to politicize the census and punish cities and states across the nation, justice prevailed, and the census will continue to remain a tool for obtaining an accurate count of our population,” said New York Attorney General Letitia James, a Democrat, whose office spearheaded the challenge, along with immigrant-rights groups represented by the ACLU.
“In light of the Supreme Court’s ruling, the Trump administration had no choice but to proceed with printing the 2020 census forms without a citizenship question,” said ACLU lawyer Dale Ho, who argued before the high court in April. “Everyone in America counts in the census, and today’s decision means we all will.”
Democratic lawmakers were mostly jubilant, while Republican ones were largely silent.
“The exclusion of the citizenship question from the census is a victory for our democracy and for fair representation of all communities in this country,” said Senate Minority Leader Chuck Schumer (D., N.Y.). “The Trump administration’s politically motivated efforts to undermine the Constitution in this instance were so reprehensible that even the conservative Supreme Court couldn’t let them get away with it.”
Some immigration advocates, however, say publicity over the planned addition of the question will dampen response rates even though the question won’t ultimately appear on the form. “Damage has already been done with the suggestion of this question,” said John Yang, president and executive director of Asian Americans Advancing Justice, a nonprofit group.
“The Trump administration put our country through more than a year of wasted time and squandered resources—all in the service of an illegal attempt to add a discriminatory question based on a pretext,” said Rep. Elijah Cummings (D., Md.), chairman of the Committee on Oversight and Reform. “Now they need to direct all their attention to the nuts and bolts of putting on the census next year.”
Edward Blum, president of the Project on Fair Representation, which has brought several lawsuits opposing benefits for minorities, lamented that the citizenship data wouldn’t be available. “It is a deep disappointment that such important data will not be available for the next round of redistricting. All of which means that the goal of citizen electoral equality may not be achieved for another decade,” he said.
A paper by census researchers released last month found that adding a citizenship question would lower the response rates of households with at least one immigrant by 8 percentage points, and reduce the overall response rate by 2.2 percentage points, which would increase the cost and reduce the quality of the count.
The citizenship question hasn’t been asked on the main census form since 1950, but the Census Bureau collects data on the citizen population through its annual American Community Survey, which is distributed to about 3.5 million people. Like the decennial census, responses are mandatory. The survey produces the citizenship data used for Voting Rights Act enforcement.
Because census data determines political representation and distribution of government resources, an undercount of immigrant communities was expected to harm the interests of states such as New York and California by shifting congressional seats and public benefits to states with more homogenous populations.
Chief Justice Roberts’s opinion, joined by four liberal justices, traced the history of the citizenship question unearthed during lower court litigation. He noted that Mr. Ross “was determined to reinstate a citizenship question from the time he entered office” and “instructed his staff to make it happen.” Commerce Department staff fished around for months, unsuccessfully, asking other agencies to request addition of the citizenship question, but both declined. Ultimately, the Justice Department’s civil-rights division was persuaded to request the question, Chief Justice Roberts observed.
“The reasoned explanation requirement of administrative law, after all, is meant to ensure that agencies offer genuine justifications for important decisions, reasons that can be scrutinized by courts and the interested public,” the court said. “Accepting contrived reasons would defeat the purpose.”
Dropping the question may not end the story. The House Oversight Committee has subpoenaed records related to the citizenship question, while the ACLU has asked a judge in New York to sanction the government for providing false testimony about its origins. The government denies those allegations.
Justice Department officials spent days considering their legal options, including whether the president could delay the census, as he suggested. But they recognized early on that wasn’t realistic given the high court’s decision, the printing deadline and other unresolved legal issues tied to the case, people familiar with the matter said.
The census case has had twists and turns unusual for administrative law disputes. In May, the ACLU introduced new evidence obtained from an unrelated redistricting lawsuit in North Carolina suggesting that the citizenship question originated with a Republican political strategist, Thomas Hofeller, who died last year.
Mr. Hofeller’s research, discovered on his computer drive, focused on the potential of using census-generated citizenship data to alter the method of allocating congressional and legislative seats from the current practice, which counts the total population, to a subset of citizens. Mr. Hofeller’s analysis indicated that doing so “would clearly be a disadvantage to the Democrats” and would be “advantageous to Republicans and non-Hispanic Whites.”
The Supreme Court hasn’t weighed in on whether the Constitution, which references a census based on “the whole number of persons in each State,” would permit such a shift.
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