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House gets its say as Supreme Court takes up census citizenship question

Todd Ruger, CQ-Roll Call on

Published in News & Features

WASHINGTON -- The House gets a relatively rare chance to directly address the Supreme Court on Tuesday in a legal showdown about whether the Trump administration can add a citizenship question to the 2020 census.

The case is one of the most significant for members of Congress during the current Supreme Court term. The census results determine how many House seats each state gets and affect how states redraw congressional districts. The results are also used to distribute billions of dollars from federal programs that are based on population count to state and local governments.

The House cited those reasons when it asked for time during oral argument. The lawmakers plan to argue that it is up to Congress to ensure an accurate count, and a federal law called the Census Act limits the discretion of Commerce Secretary Wilbur Ross to add a question about whether each person being counted is a citizen.

"The decennial census is a vital cornerstone of our democratic institutions, and none more so than the House of Representatives," House General Counsel Douglas N. Letter wrote when asking for the time. "The House as a chamber depends upon an accurate census for its institutional integrity, and its membership will be affected by the outcome of this case."

The justices gave Letter a 10-minute slice of the high court action. Also arguing Tuesday will be U.S. Solicitor General Noel Francisco, New York Solicitor General Barbara Underwood and Dale Ho of the New York Immigration Coalition.

Such an accommodation for lawmakers has happened five times in the past 12 years: for the House in a case about President Barack Obama's immigration executive action in 2016; for 45 senators in a 2013 case about Obama's presidential recess appointments; for Kentucky Republican Sen. Mitch McConnell in two campaign finance cases in 2013 and 2009; and the Senate in a 2007 employment discrimination dispute.

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In the census case Tuesday, the Trump administration contends that Ross followed the proper decision-making process to add the question, which has been used off and on in previous censuses.

In recent decades, the question has gone on the long-form census questionnaire, which goes to about 1 in 6 households, but not on the short form that most households get. And the citizenship question is on the annual American Community Survey questionnaire sent to approximately one in 38 households since that survey began in 2005.

Ross wrote in a March 2018 memo that Congress delegated the authority for census questions to him, and he would add the citizenship question based on a Justice Department request for improved data to enforce the Voting Rights Act of 1965.

But a federal district judge, in a challenge from states and civil rights groups, found that Ross' decision was unlawful for several reasons and stopped the Commerce Department from adding the question.

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