On Tuesday the Supreme Court will hear oral arguments in a case contesting the Trump administration's push to add a citizenship question to the 2020 national census. This is itself alarming: the constitutional intent of the census, the repeated dire warnings by career census staff, and the flagrant manner in which Commerce Secretary Wilbur Ross lied outright about his actions would seem to make the case clear-cut. The Supreme Court will essentially be deciding whether or not all of that evidence should be tossed in favor of the alternative Trump administration hypothesis: We can do what we want, so shut up.
The core of the argument centers around Team Trump's behavior in pushing for the new citizenship question. A lower court blasted Ross for purposefully lying when he claimed that the Justice Department requested that the question be added; it was actually Ross who went to the Justice Department fishing for a pretext to add it. And it matters because census experts are uniform in their warnings that including the question will suppress the response rates of minority, and especially Latino, census respondents. There is a perception that the responses to that question would be shared, despite current prohibitions against doing so, with law enforcement in an effort to target undocumented U.S. residents for deportation. That means counties with larger populations of undocumented residents could see their "official" census-set populations significantly undercounted; that, in turn, means reduced federal spending to those counties. The number of people actually living there doesn't change, but the funding—and even more critically, representation in the House of Representatives—does.
And that potential undercount, according to researchers, could be "huge."
Nationally, only 35 percent of immigrants and 31 percent of Latinos trusted the Trump administration to protect this information and not share it with other federal agencies — an issue that has already arisen in debates about the citizenship question. Trust in the Trump administration was even lower in California and San Jose.
It seems fairly clear from Ross’ misdirections that this selective—but potentially severe—undercounting was the whole point on the part of the virulently anti-immigrant administration.
The administration (and House and Senate Republicans) have been unsubtle in their efforts to target Democratic regions with punitive fiscal and regulatory measures; intentionally undercounting residents, in violation of the Census’ explicit constitutional mandate and intent, is yet another way to diminish the federal rights of communities with large immigrant populations, legal or not—not just in the dreadfully Democratic California, but in districts like the one surrounding Rep. Devin Nunes' family's Iowa dairy farm. Career census officials have been clear in their denunciation of Ross' move for this precise reason, and noted that this known undercount effect is the reason no census has asked the question since 1950.
Ross overruled them, went to the Justice Department for a rationale for asking the question, denied doing so, was caught, and was hammered by the lower court for a "smorgasbord of classic, clear cut" violations of the Administrative Procedure Act. He provably lied about the administration's reasons for taking the action, therefore the action was taken illegally.
This is the classic Team Trump move. Do something intentionally racist, (see: "Muslim travel ban") but do it so incompetently and with such contempt for existing laws that the courts step in to put the brakes on. The process is repeated iteratively until Trump's underlings find someone who can cobble together sufficient legal pretext for doing the thing they did illegally the first few times—in other words, until they can convince a court that despite their own repeated public declarations of racist intent, the newest iteration of their proposed actions is entirely unrelated to those past statements.
This now goes to the Supreme Court, and a final ruling is expected by June. It falls to the court to decide whether the commerce secretary of the United States is allowed to willfully lie his ass off about a program that will demonstrably harm minority communities—and whether intentional deceit, on the part of a federal official, is sufficient to block the actions that federal official took or whether we're going to be tossing that law on the burn pile with all the others that have been incinerated during the past two years.
The outcome is unknown. Chief Justice John Roberts, in particular, has in the past attempted to moderate his court here and there in efforts to retain its public legitimacy, rather than give in to the trolling, nonsensical nihilism of the Thomas-Alito wing. Now that he has a steadfast hard-right majority, however, he may decide he no longer has to. Oral arguments tomorrow may give us an early clue.