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The Supreme Court Seems Oddly Ambivalent About Being Lied To

With their decision Thursday, the justices offered a strong rebuke of the Trump administration's proposal to add a citizenship question to the census—but gave the administration the option of coming up with a better excuse.

Donald Trump and Wilbur Ross (Mark Wilson/Getty Images)

On Thursday, five justices handed the Trump administration its first major defeat in the high court, narrowly rejecting the administration’s effort to add a citizenship question to the 2020 census. Chief Justice John Roberts joined the court’s liberals to order the Census Bureau to reconsider the matter, a process that may go past the deadlines next week required to print the questionnaires on time.

It was never really a mystery why the Trump administration sought to add a citizenship question to the 2020 census: to bolster white political power by reducing nonwhite participation. Nonetheless, the Justice Department, representing the Trump Administration, had asked the Supreme Court to overturn a lower court’s ruling and sign off on the constitutionality of the new question. Roberts, writing for the majority, declined. “If judicial review is to be more than an empty ritual, it must demand something better than the explanation offered for the action taken in this case,” he wrote.

The Constitution requires the federal government to count every person inside the United States every ten years for representational and redistricting purposes: With the sole exception of the U.S. Senate, every federal and state legislative body uses census data when redrawing its seats and districts—and thus the geography of American political power—once every decade. Congress also uses the count to allocate hundreds of billions of dollars in federal programs to the states. Academics, businesses, and nonprofits draw upon its statistics on race, gender, income, and more on a daily basis. It’s the lifeblood of American governance.

The case known as Department of Commerce v. New York began last year, when Secretary of Commerce Wilbur Ross, whose department oversees the Census Bureau, announced that the next census would feature a citizenship question for the first time in 70 years. Census Bureau staffers warned that it would warp the accuracy of the count, reducing participation by immigrant and noncitizen households by at least 5.8 percent (a Census Bureau study published this month raised that figure to 8 percent). That level of noncompliance could result in an undercount of thousands of residents, depriving them of millions of dollars in federal funds that they would otherwise be eligible to receive. Some states, especially those with large immigrant populations, could lose seats in the House of Representatives and votes in the Electoral College depending on the outcome.

Despite the warnings, Ross overruled his underlings.

Why would the secretary of commerce insist on adding a question that could undermine something as vital as the census? Ross told Congress and the public that he acted at the request of the Department of Justice. The DOJ purportedly needed the data to enforce the Voting Rights Act of 1965 (VRA). It doesn’t, though. DOJ officials have been enforcing the VRA since its inception without a citizenship question, which was dropped from the census short form in 1950. Census Bureau officials also warned that by reducing participation, asking the question could actually give the Justice Department a less accurate count of the voting-age citizen population than what’s available with current statistical models.

The more likely explanation is that the Trump administration hoped to dissuade immigrant and noncitizen participation in the census. Emails uncovered during litigation revealed that Ross had actually pressured the Justice Department to make the request so he’d have a pretext to add the question. Ross also later admitted that he had made the decision in consultation with some of the Trump administration’s leading anti-immigrant figures at the time, including Attorney General Jeff Sessions, White House adviser Steve Bannon, and Kansas Secretary of State Kris Kobach. Though it would corrupt a decade of vital federal data, adding the question would also boost electoral representation in whiter, more conservative, and more rural parts of the country at the expense of more diverse regions.

The Supreme Court faced a similar dilemma with regard to Trump administration policy last year. President Trump’s travel ban, which blocked most visa travel from a half-dozen Muslim-majority countries, clearly sprang from the president’s religious animus: Its origins trace back to December 2015, when then-candidate Trump demanded a “total and complete shutdown” of Muslims entering the United States. As time went on, he switched to calling for “extreme vetting” to disguise the proposal’s motivations. Lower courts had no problem discerning the president’s motive and intent. (It helped that early versions of the ban were poorly drafted and legally shoddy by any standard.) But the Supreme Court, led by Roberts, accepted his ex post facto rationale for the ban’s third iteration. When the justices heard oral arguments on this newer census case in April, the court’s conservatives seemed ready to repeat history.

Earlier this month, however, the citizenship question’s opponents filed a brief alerting the district court to potential new evidence. They told the court that documents recently found on a hard drive owned by Thomas Hofeller, a deceased Republican operative, showed he played a greater role in the decision to add the question than previously known. Every jurisdiction in the United States currently draws its legislative maps based on the total population living there. Hofeller proposed in 2015 that Texas lawmakers instead draw their legislative maps based on American citizens of voting age. The change, he wrote, “would be advantageous to Republicans and non-Hispanic whites.”

The plan would be “functionally unworkable,” Hofeller wrote in 2015, unless a citizenship question was added to the 2020 census, in order to gather the data needed to make the change. He urged the Trump transition team to implement one, and the Justice Department’s December 2017 letter to the Census Bureau that formally requested a citizenship question includes a paragraph identical to one found in a draft in Hofeller’s files from that August. The Justice Department later denied that Hofeller had played any role in the letter, rejecting what it called a “baseless attack on the integrity of the department and its employees,” and describing the opponents’ claims as a “conspiracy theory.”

None of the justices mentioned Hofeller or the files in Thursday’s opinion. It’s unclear what impact, if any, the last-minute revelations had on the case’s outcome. Justice Stephen Breyer didn’t seem to find them necessary in order to reject the proposal. “How can an agency support the decision to add a question to the short form, thereby risking a significant undercount of the population, on the ground that it will improve the accuracy of citizenship data, when in fact the evidence indicates that adding the question will harm the accuracy of citizenship data?” he wrote in his concurring opinion. “Of course it cannot.”

Roberts, for his part, did not quite accuse the Justice Department of lying to the Supreme Court. But he came exceedingly close. “Altogether, the evidence tells a story that does not match the explanation the Secretary gave for his decision,” he wrote. “In the Secretary’s telling, Commerce was simply acting on a routine data request from another agency. Yet the materials before us indicate that Commerce went to great lengths to elicit the request from DOJ (or any other willing agency). And unlike a typical case in which an agency may have both stated and unstated reasons for a decision, here the VRA enforcement rationale—the sole stated reason—seems to have been contrived.”

It would be nice to think that the justices decided to offer a muscular rebuke of Ross and the Justice Department for their deception. But, in another strange twist in this case, the court’s opinion falls short of that marker. Instead, it gave Ross and the Justice Department the option for them to try again. “We do not hold that the agency decision here was substantively invalid,” Roberts wrote. “But agencies must pursue their goals reasonably.... What was provided here was more of a distraction.” The justices will likely have another opportunity to scrutinize the Trump administration’s motives as litigation continues. Unless the court takes a tougher stand, Thursday’s ruling won’t mean “don’t lie about your motives.” It will mean “hide it better.”