This month, the US Supreme Court will decide the legality of the decision by the Trump administration to add, for the first time since 1950, a citizenship question on the census form that goes to every household.
In fact, while questions about citizenship have been asked of some subsets of Americans in previous, but not all, decennial population counts, the questionnaire has never -- in American history -- collected that information for every person. And never in this context, as legitimate debates about immigration policy grow increasingly toxic and as trust in government sinks to record lows.
Commerce Secretary Wilbur Ross claimed that he placed the question on the census at the request of the Justice Department's Civil Rights Division to help enforce the Voting Rights Act. I had the privilege of serving at the helm of the Civil Rights Division in a Republican administration and personally reviewed numerous proceedings and frequent litigation to enforce the Voting Rights Act. In the 54 years since it was passed, not one of my counterparts -- Republican or Democrat -- sought a citizenship question on the census since we recognized that it was unnecessary for vigorous enforcement of the act and would likely do more harm than good.
Perhaps that consistent bipartisan record helps explain why three different federal courts found Ross' explanation to be a pretext. And it might explain why Chief Justice John Roberts and Justice Brett Kavanaugh asked questions at the Supreme Court oral argument about whether the citizenship question would, in fact, improve the Voting Rights Act's enforcement.
Newly released documents reveal that a Republican operative, who had pushed the idea of adding a citizenship question with the Trump administration to create a political advantage for "Republicans and non-Hispanic whites," helped ghostwrite a draft of the Justice Department's request in 2017. This is clearly not the intended goal of the Voting Rights Act and would be a historic scar on the national portrait.
The decision was not simply predicated on a disingenuous rationale. It rejected the analysis of longstanding career employees at the Census Bureau and relied instead on the experience of Nielsen, a company that later disclaimed Ross' representation of its position and submitted a brief asking the Supreme Court to remove the question. At the Supreme Court oral argument, Justice Elena Kagan noted that to the extent there was a justification for the decision, most of the logic was supplied by Justice Department lawyers months after the secretary announced his decision.
This is not how federal agencies are supposed to act.
Different administrations have different policy priorities, and their ability to make them real is not only permissible but healthy. Elections can and should have consequences.
But there are guardrails. Beyond arenas constitutionally reserved to the president (not the case here), the policymaking authority of executive agencies depends on their experience and expertise, delivered within the parameters that Congress has provided.
Congress requires that agencies give real reasons and rely on real facts. The requirement that agencies not take action that is "arbitrary and capricious" leaves plenty of room for legitimate executive discretion. But it also ensures that agencies stay grounded. Permission to indulge pretext and raw political preference can be too easily manipulated, by liberal administrations no less than conservative ones.
In this case, the administration's reasons are invented, not real, and it is relying on a series of fictions, not facts. This should not be the basis of such a consequential decision.
In a polarized climate of fear, more realistic evidence (including the Census Bureau's own research) suggests that a citizenship question would lead to a nearly 6% decline in self-response rates among noncitizen and Hispanic households.
The census, mandated by the Constitution, is how we know who we are and is the basis for our informational structure. Its results are the basis for allocating billions of dollars of funding and representation for federal, state and local office. And every person in the United States must live with the results for the next 10 years. Its success in 2020 and beyond now sits with the Supreme Court.