(Bloomberg) -- Key U.S. Supreme Court justices seemed inclined to let the Trump administration add a question about citizenship to the 2020 census in a clash that will shape the allocation of congressional seats and federal dollars.
In an 80-minute argument Tuesday that was both technical and combative, Chief Justice John Roberts and Justice Brett Kavanaugh directed almost all their questions to the lawyers challenging the decision to ask about citizenship. Kavanaugh said Congress gave the Commerce secretary "huge discretion" to decide what to ask on the census.
Opponents say a citizenship question could result in a census undercount in areas with large non-citizen populations that could shift congressional districts and federal funds away from those communities.
"There’s no doubt that people will respond less," Justice Sonia Sotomayor said. "That’s been proven in study after study."
The case is the court’s first direct look at an administration initiative since the justices upheld President Donald Trump’s travel ban last year. It will test the court’s willingness to defer to an administration that critics say has a penchant for cutting legal corners.
In a book-length opinion in January, U.S. District Judge Jesse Furman said that in deciding to add the citizenship question, Commerce Secretary Wilbur Ross committed a "veritable smorgasbord" of violations of the federal law that governs administrative agencies. That law requires officials to make major decisions through a reasoned process and to give an honest explanation for their actions.
The Trump administration says evidence that the question would depress participation in the census and reduce its accuracy was unclear enough that Ross was justified in overriding the recommendation of experts at the Census Bureau. Ross also said the citizenship question would help the Justice Department enforce the Voting Rights Act.
"There’s no evidence in this record that the secretary would have asked this question had the Department of Justice not requested it," said Solicitor General Noel Francisco, the administration’s top courtroom lawyer.
The court’s liberal justices were skeptical, noting that Ross and his aides solicited the Justice Department letter, obtaining it only after failing to procure a request from the Homeland Security Department and after Ross personally asked then-Attorney General Jeff Sessions.
"It really did seem like the secretary was shopping for a need," Justice Elena Kagan said. "You can’t read this record without sensing that this need is a contrived one."
Justice Samuel Alito countered by pointing to the Census Bureau’s conclusion that a question would produce answers from 22 million people for whom the government lacks citizenship information in other databases. The Census Bureau estimated that about 98 percent of those answers would be accurate.
Alito suggested Ross acted reasonably by rejecting the Census Bureau’s recommendation that it instead use other government data and statistical modeling techniques.
"Is it arbitrary and capricious for the secretary to say, ‘I’ll go with the 98 percent because that’s a known quantity’?" Alito asked, referring to the legal test that normally applies under the U.S. Administrative Procedure Act.
Justice Stephen Breyer responded by citing the trial testimony of John Abowd, the Census Bureau’s chief scientist, who said he was confident the bureau could build a statistical model that would be more accurate.
The citizenship question is being challenged by five organizations represented by the American Civil Liberties Union, as well as a separate New York-led group of states, cities and counties. They were joined Tuesday by Douglas Letter, a lawyer for the House of Representatives who pointed to the constitutional requirement of an "actual Enumeration" of the population every 10 years.
"Anything that undermines the accuracy of the actual enumeration is immediately a problem," Letter said.
According to Furman, California, Texas, Arizona, Florida, New York and Illinois all are at risk of losing at least one seat in the House of Representatives.
But Roberts and Kavanaugh both said census-takers have long asked other demographic questions.
"Sex, age, things like that," Roberts said. "You know, do you own your house? Do you own a radio? I mean, the questions go quite beyond how many people there are."
Kavanaugh said the census statute "gives huge discretion to the secretary how to fill out the form, what to put on the form."
"So how are we to think about enumeration when the history and the statute suggests that there is more than just enumeration that’s at stake here?" he said.
Census-takers started asking about citizenship in 1820 but haven’t posed the question to every household since 1950. From 1960 to 2000, a sample of the population was asked about citizenship. Since 2005, the Census Bureau has asked about citizenship in a separate annual survey sent to some people. The 2010 census didn’t include a citizenship question at all.
The argument session was tense from beginning to end. Sotomayor interrupted Francisco only seconds after he began his argument, and she bristled near the end when he suggested the possibility a group could boycott the census to try to get a question removed.
"Are you suggesting that Hispanics are boycotting the census?" Sotomayor asked. "Are you suggesting they don’t have, whether it’s rational or not, a legitimate fear?"
"Not in the slightest," Francisco responded, saying he was only trying to make a more general point about what could happen in the future.
With the Census Bureau saying it needs to start printing questionnaires this summer, the high court is hearing the case on an expedited basis, directly reviewing the trial court decision and bypassing the appeals court level. A ruling is likely by late June.
The case is Department of Commerce v. New York, 18-966.
(Updates with comments from lawyers and justices starting in eighth paragraph.)
-- With assistance from Kimberly Strawbridge Robinson (Bloomberg Law)
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