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California Sues Trump Administration Over Census Question Asking People If They are U.S. Citizens

Illegal Immigrants CA
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Washington, DC

California Attorney General Xavier Becerra sued the Trump administration on Tuesday, arguing that Commerce Secretary Wilbur Ross’s decision to ask in the census whether the people being counted are U.S. citizens violates both federal law and the U.S. Constitution.

Ambassador Ken Blackwell served as chairman of the U.S. Census Monitoring Board in 2000 and spoke exclusively with Breitbart News in reaction to Becerra’s lawsuit after it was filed in federal court on Tuesday.

This dispute began when Ross announced that he was directing the U.S. Census Bureau, which is part of the U.S. Department of Commerce, to ask each household in America how many persons live there, and how many of those persons are Americans.

Article I, Section 2, Clause 3 of the Constitution says that Congress shall conduct a census every ten years to obtain an “Enumeration” of the people in each state, so that congressional seats in the U.S. House of Representatives can then “be apportioned among the several States.”

The Fourteenth Amendment then adds that this count includes “the whole number of persons in each state,” overriding a provision in the original 1789 Constitution under which slaves were counted as only three-fifths of a human being.

“For this foundational step in our country’s democratic process, the Constitution recognizes no exception based on citizenship,” Becerra argues in his state’s complaint in federal district court in northern California.

“It is long settled that all persons residing in the United States—citizens and non-citizens alike—must be counted to fulfill the Constitution’s ‘actual Enumeration’ mandate,” California’s lawsuit claims, a claim categorically rejected by Blackwell.

“Including the citizenship question on the 2020 Census will directly impede the Bureau from procuring the ‘actual Enumeration’ of the U.S. population,” Becerra continues, saying that fewer people will answer the census at all of they are asked about citizenship.

Becerra adds, “California has more foreign-born residents (over 10 million) and non-citizens (over 5 million) than any other state,” and therefore his state has an interest in all its foreign inhabitants – including illegal aliens – being counted.

Federal law, codified at 13 U.S.C. § 141(a), commands that the secretary of commerce shall “take a decennial census of population” every tenth year ending in the number zero, meaning that the next census must be conducted in 2020.

That statute continues that the secretary conducts the census “in such form and content as he may determine.” One court in Washington, DC, held in 1931 that the secretary “is necessarily invested with discretion in matters of form and procedure when these are not specifically provided by law.”

Becerra’s lawsuit focuses on the fact that the actual census is used to calculate several federal programs, including Medicaid, Medicare Part B, a couple children’s programs, and highway funding. All other population-related funding is determined through the results of the American Community Survey (ACS.) “Unlike the decennial census, the ACS is not required by the Constitution,” asserts California.

“The decennial census has not included a question on citizenship since the 1950 Census,” the lawsuit continues. “Since that time, the question has appeared only on the ACS.”

Becerra alleges, “Because California has a proportionately large population of non-citizens and relatives of non-citizens compared to other states, the citizenship question will now likely cause California to lose seats for the first time in its history.” In addition to losing seats in Congress, California would also lose funding from the various federal programs that allocate funds based on census data.

The lawsuit also raises as a separate count that the way Ross added the question to the census violates the Administrative Procedure Act (APA). Insisting that this question would lead to less accurate population numbers that undermine the purposes for which those numbers are tabulated, adding this question to the census is therefore “arbitrary and capricious” in violation of the APA, according to Becerra.

“Becerra’s lawsuit is absurd,” said Chairman Blackwell in an interview with Breitbart News. “The Supreme Court explicitly left open the possibility that states could try redistricting on the basis of citizenship. You can’t do that without census numbers that tells you which people are citizens!”

Blackwell is referring to the 2016 case Evenwel v. Abbott. In that case, the Supreme Court held that the Constitution does not require states to conduct redistricting of legislative districts based on citizenship rather than total population, but unanimously left open the possibility that states had the option to do so. The Court in Evenwel said it would rule on the constitutionality of citizen-based legislative districts when a state attempted such a districting map – one that a state could only draw if it had census numbers that included data on citizenship.

“Becerra says it’s ‘long settled’ that every person has to be counted,” Blackwell continued, “but courts have ruled no such thing!”

A federal trial court suggested in 1980 that the Census Bureau cannot focus on citizenship. But in that case, FAIR v. Klutznick, the trial court held that it had no jurisdiction to decide the dispute at all, dismissing the case because the plaintiff lacked standing. The court therefore never issued an authoritative ruling on the merits of that case.

In the Northeast, New York is planning on filing a similar lawsuit, one that will include other states as co-plaintiffs. New York Attorney General Eric Schneiderman sent Ross a letter on behalf of 20 states on February 12, 2018, arguing the citizenship question would be illegal.

It appears that Becerra might be hogging the spotlight here, breaking with Schneiderman to file California’s lawsuit first, knowing that New York was gathering a coalition of Democrat-led states to sue the Trump administration.

With Becerra and Schneiderman filing separate lawsuits, they will create multiple federal appellate decisions, increasing the odds that this case will end up in front of the U.S. Supreme Court.

The case is California ex rel. Becerra v. Ross, No. 3:18-cv-01865 in the U.S. District Court for the Northern District of California.

Ken Klukowski is senior legal editor for Breitbart News. Follow him on Twitter @kenklukowski.

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