One of the first orders of business in 2020 is sorting out what to do about illegal immigrants.
The Trump administration, which abandoned the Department of Justice’s lawsuit to force a citizenship question into the 2020 census, faces an uncertain legal challenge in the Supreme Court. The 2020 Census is already underway and officials are preparing for an expected backlash against Trump’s supposed invasion of the most sacred questioning of civic identity.
Trump’s lawyers are arguing, unsuccessfully so far, that the citizenship question is vital to enforce the Voting Rights Act. The court’s judgment likely would be focused on whether questions about citizenship should be part of the census. If the administration loses the lawsuit, it could spell disaster for a proposed settlement the Justice Department is working on with both the states and civil rights groups that support the citizenship question.
At the heart of the case is the definition of “American” – a question of supreme importance for Republicans. In a line of “America” that has barely changed in the past century, Republicans have always envisioned new arrivals as Americans-of-birth. Democrats, on the other hand, celebrate those who have passed through the U.S. legally, its example as the kernel of freedom.
Decisions about who is an American can be made at the polls in elections for Senate, House and the president. But the census determines which seats in Congress are worth the same amount, roughly equal to what the population would be if everyone were counted at the time of the Census. So a wildly inaccurate census would mean that members of Congress – or the presidential electors who award them – would have to be in many more seats.
The result: more political representation for the states that have produced the most Americans.
On Wednesday, the court heard two cases that highlighted how absurdly long the process had been without a comprehensive ruling. The first was an appeal by Michigan and other states to the federal circuit court for refusing to block a federal study on whether a citizenship question on the census was necessary to protect the Voting Rights Act. The federal government had no such justification for asking the questions of American, or of those registering for the census, that they themselves would like not to answer.
In the second case, Michigan State University has sued the Department of Commerce over the census and applied pressure on Census 2020 officials to promise the school, which is a federal taxpayer, that it could reject a census that had a citizenship question on it.
The claim, as it was presented to the Supreme Court, was that the census was not neutral in its design and, therefore, not neutral in form, which meant that when a citizenship question was added, it would be too narrow, even partial, to cover the people that the census should have counted.
It was never going to be easy to establish the function of the Census, not with legal experts from the Justice Department, which opposes it, involved, and not with other officials fighting to defend the current system. As George Washington University law professor Richard V. Lazarus and former assistant attorney general Steven Vladeck wrote, “it is a strange claim, if it is true, that such a sweeping survey has in any way been neutral.”