Trump, Lib Dem, Suprema Corte e Census. Un duello all’ultimo sangue.

Giuseppe Sandro Mela.

2019-02-17.

«Il diavolo si nasconde nei dettagli»

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Premessa. Certiorari è l’infinito presente passivo del verbo latino certioro, certiorare, che significa informare. Nel linguaggio giuridico americano indica il documento con cui una corte superiore notifica ad una inferiore tutta la giurisprudenza relativa ad una determinata questione. Il certiorari è propedeutico e forma la base di ogni sentenza.

L’importanza dell’argomento di interesse è stata ben evidenziata dalla Suprema Corte degli Stati Uniti.

United States Department of Commerce, Et Al., versus State Of New York, Et Al., Respondents

On Petition For Writ of Certiorari before Judgment to The United States Court of Appeals for The Second Circuit.

«Commerce Secretary Wilbur Ross’s decision to add a citizenship question to the 2020 Census would—according to the government’s own “conservative” analysis—cause “approximately 6.5 additional million people” not to respond, Pet. App. 145a, 152a, more people than the population of Missouri, the 18th-most populous state. The district court found that, as a result, California, Texas, Arizona, Florida, New York, and Illinois face a “certainly impending” or “substantial risk of losing a seat” in the House of Representatives, Pet. App. 175a, and that numerous states would “lose funds from several federal programs.” Pet. App. 205a. Secretary Ross’s purported justification was to collect data that the Department of Justice admitted “is not necessary” for any purpose. Pet. App. 94a. ….

The Constitution requires a Decennial Census to count the total number of “persons”—regardless of citizenship status—in each state, “in such a manner as [Congress] shall by law direct.” U.S. Const. art. I, § 2, cl.3. The census is a “mainstay of our democracy,” governing the apportionment of the House of Representatives and the allocation of votes in the Electoral College. Franklin v. Massachusetts, 505 U.S. 788, 818 (1992) (Stevens, J., concurring). Census data are also the “linchpin of the federal statistical system,” Dep’t of Commerce v. U.S. House of Representatives, 525 U.S. 316, 341 (1999) (quotation marks omitted), determining the allocation of hundreds of billions of dollars in federal funds annually, Pet. App. 178a. ….

the Census Bureau’s ability to conduct the only count the Constitution expressly requires: determining the whole number of persons in each state in order to apportion House seats»

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Cerchiamo di ricapitolare le oltre ottantamila pagine di istanze e sentenze in quattro righe: saranno riduttive, ma almeno si potrà comprendere la posta in gioco.

– La costituzione americana impone che ogni dieci anni il Census esegua un censimento della popolazione, ossia conti il numero di ‘persone’ presenti in ogni stato degli Stati Uniti.

– I numeri raccolti dal Census sono utilizzati per calcolare il numero dei rappresentati al Congresso che spettano ad ogni stato e sono inoltre utilizzati nella ripartizione del budget federale: un giro di migliaia di miliardi.

– Negli Stati Uniti non esiste un documento di identità corredato di fotografia recente che abbia valore a livello federale.

– Per votare, le persone devono ad ogni tornata elettorale iscriversi alle liste elettorali: basta soltanto il presentarsi.

– Alle elezioni politiche dovrebbero poter votare solo quanti siano cittadini dello stato.

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Le possibilità di abuso sono evidenti.

Il primo ad approfittarne fu Al Capone, che fece eleggere un suo sindaco ed una sua giunta nella cittadina di Cicero, vicino a Chicago, facendola diventare il tempio del gioco di azzardo clandestino, della prostituzione, della fabbricazione e spaccio di alcolici durante il proibizionismo, ed infine impiantandoci una sua banca in grado di fare ogni più spigliata operazione, dal lavaggio del denaro sporco in su. Essendosi ostinato a lavorare in proprio senza condividere cotanto benessere con i politici, Al Capone fu arrestato e condannato a dieci anni per evasione fiscale.

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I liberal democratici hanno ripreso in grande stile, a livello federale, la simpatica e disinvolta iniziativa di Al Capone, erigendosi a paladini di un’immigrazione clandestina illegale che ha ingigantito la popolazione di stati quali la California, Arizona, Florida, New York, Illinois. Il numero dei seggi al Congresso ripartiti a questi stati è salito in modo vertiginoso rispetto a quanto sarebbe loro spettato. I migranti poi si sono iscritti in massa alle liste elettorali, spesso con nomi fantasia, ed hanno votato compatti per i loro benefattori, che li gratificano anche economicamente.

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Dovrebbe essere evidente l’estremo interesse politico ed economico che verte sui migranti: i liberal democratici che li patrocinano in ogni modo e maniera ed i repubblicani che li vedono come il fumo negli occhi, per gli stessi identici motivi. Dei migranti come persone umane non interessa nulla a nessuno.

Se la Suprema Corte sentenziasse che il Census possa includere la domanda sulla nazionalità, si censirebbe chi sia o meno cittadino americano, e quindi ammissibile al voto. Le liste elettorali subirebbero diete dimagranti stupefacenti.

Difficile stimare le ripercussioni, in carenza di dati certi.

Una riduzione dei votanti di 6.5 milioni è cifra minimale prudenziale: molto verosimilmente si tratterebbe di almeno tre volte tanto. I liberal democratici ne uscirebbero con le ossa rotte.

Questo è il vero oggetto del contendere.

Nota.

L’articolo che segue, parte integrante di questo testo, è smaccatamente liberal.

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→ The New York Times. 2019-02-15. Supreme Court to Hear Case on Census Citizenship Question

WASHINGTON — The Supreme Court agreed on Friday to decide whether the Trump administration may add a question about citizenship to the 2020 census questionnaire that will be sent to every household in the nation.

The court’s move added a highly charged and consequential blockbuster to what had been a fairly sleepy term. The justices have mostly avoided controversy while they adjusted to the new conservative majority created by the arrival in the fall of Justice Brett M. Kavanaugh.

The federal government has long gathered information about citizenship, but since 1950, it has not included a question on it in the forms sent once a decade to each household. Last month, a federal trial judge blocked the Commerce Department from adding the question, saying that the process that led to the decision was deeply flawed.

The Supreme Court stepped in before any appeals court had ruled on the matter, and it put the case on an unusually fast track. The Supreme Court’s speed was almost certainly a result of a looming deadline — the census forms are set to be printed in June.

Without immediate action from the court, the solicitor general, Noel J. Francisco, told the justices, “the government will be disabled for a decade from obtaining citizenship data through an enumeration of the entire population.”

The Supreme Court scheduled arguments for late April, and it is expected to rule before the end of June.

The case — United States Department of Commerce v. New York, No. 18-966 — is the latest test of the scope of executive power in the Trump era. Last year, the justices upheld President Trump’s authority to restrict travel from several predominantly Muslim countries. More recently, the court rejected the administration’s request to reinstate a ban on asylum claims by immigrants who cross the southern border illegally.

On Friday, Mr. Trump said he expected his declaration of a national emergency to build a border wall to be challenged in court. He predicted that the administration would lose in the lower courts but prevail in the Supreme Court.

The census case has its roots in the text of the Constitution, which requires an “actual enumeration” every 10 years, with the House of Representatives to be apportioned based on “the whole number of persons in each state.”

“By its terms, therefore, the Constitution mandates that every 10 years the federal government endeavor to count every single person residing in the United States, whether citizen or noncitizen, whether living here with legal status or without,” Judge Jesse M. Furman of the Federal District Court in Manhattan wrote last month in his decision, setting out the consensus view.

Critics say that adding the question on citizenship would undermine the accuracy of the census because both legal and unauthorized immigrants might refuse to fill out the forms. By one government estimate, about 6.5 million people might decide not to participate.

That could reduce Democratic representation when congressional districts are drawn in 2021 and affect the distribution of hundreds of billions of dollars in federal spending. Judge Furman found that were the question added, Arizona, California, Florida, Illinois, New York and Texas would risk losing seats in the House and that several states could lose federal money.

Dale Ho, a lawyer with the American Civil Liberties Union, which challenged the addition of the citizenship question, said that it “would cause incalculable damage to our democracy.”

“The evidence presented at trial exposed this was the Trump administration’s plan from the get-go,” Mr. Ho said.

Wilbur Ross, the commerce secretary, has said that he ordered the question to be added in response to a December 2017 request from the Justice Department, which said that data about citizenship would help it enforce the Voting Rights Act of 1965.

In a detailed decision after an eight-day trial, Judge Furman concluded that Mr. Ross had dissembled, saying that “the evidence is clear that Secretary Ross’s rationale was pretextual.”

“While the court is unable to determine — based on the existing record, at least — what Secretary Ross’s real reasons for adding the citizenship question were, it does find, by a preponderance of the evidence, that promoting enforcement of the” Voting Rights Act, or V.R.A., “was not his real reason for the decision,” Judge Furman wrote. “Instead, the court finds that the V.R.A. was a post hoc rationale for a decision that the secretary had already made for other reasons.”

Judge Furman had called for Mr. Ross to be questioned under oath, but the Supreme Court blocked that order in October. Justice Neil M. Gorsuch, joined by Justice Clarence Thomas, said the court should have gone further, shutting down all pretrial fact-gathering in the census case. Justice Gorsuch added that there was no indication of bad faith in Mr. Ross’s conduct.

“There’s nothing unusual about a new cabinet secretary coming to office inclined to favor a different policy direction, soliciting support from other agencies to bolster his views, disagreeing with staff or cutting through red tape,” Justice Gorsuch wrote at the time. “Of course, some people may disagree with the policy and process. But until now, at least, this much has never been thought enough to justify a claim of bad faith and launch an inquisition into a cabinet secretary’s motives.”

In November, the Supreme Court rejected a request from the Trump administration to halt the trial, over the dissents of Justices Thomas, Gorsuch and Samuel A. Alito Jr.

In his ruling last month, Judge Furman relied on evidence in the so-called administrative record, meaning the materials the government said Mr. Ross had considered before making his decision.

Evidence presented at the trial showed that Mr. Ross had wanted to add the question long before the request from the Justice Department. The letter from the Justice Department, Judge Furman wrote, was an attempt “to launder their request through another agency — that is, to obtain cover for a decision that they had already made.”

Documents disclosed in the case showed that Mr. Ross had discussed the citizenship issue early in his tenure with Stephen K. Bannon, the former White House chief strategist and an architect of the Trump administration’s tough policies against immigrants, and that Mr. Ross had met at Mr. Bannon’s direction with Kris Kobach, the former Kansas secretary of state and a vehement opponent of unlawful immigration.

“In a startling number of ways,” Judge Furman wrote, “Secretary Ross’s explanations for his decision were unsupported by, or even counter to, the evidence before the agency.”

Judge Furman ruled that the administration had violated federal statutes. But he rejected a constitutional challenge based on equal protection principles, saying that there was not enough evidence in the record to conclude that Mr. Ross had intended to discriminate against minorities and unauthorized immigrants.

The lawsuit challenging the addition of the question was filed by New York, other states, localities and advocacy groups. They said that asking the question was a calculated effort by the administration to discriminate against immigrants.

“Adding a question about citizenship to the census would incite widespread fear in immigrant communities and greatly impair the accuracy of population counts,” Letitia James, New York’s attorney general, said on Friday after the Supreme Court agreed to hear the case.

In urging the Supreme Court to review Judge Furman’s decision, Mr. Francisco, representing the Trump administration, wrote that Mr. Ross had wide discretion over the census that could not be second-guessed by courts. He added that questions about citizenship have often been asked of at least a sample of the population in many earlier censuses and are commonplace in ones conducted by other developed democracies.

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→ Judicial Watch. 2019-02-15. Judicial Watch and Allied Educational Foundation File Brief with Supreme Court Urging it to Allow Inclusion of Citizenship Question in the 2020 Census

The mountain of new data generated by the decennial census question will assist private litigants and the Department of Justice in their efforts to enforce the NVRA [National Voter Registration Act] … and will overcome limitations identified by a federal court concerning the current data on citizenship’

(Washington, DC) – Judicial Watch announced today that it joined with the Allied Educational Foundation (AEF) on February 11, 2019 in filing an amici curiae brief in the United States Supreme Court, urging it to overturn the ruling of the United States District Court for the Southern District of New York blocking the Secretary of Commerce from adding a question about citizenship to the 2020 census.  The brief argues that including a citizenship question would help Judicial Watch and the government make sure only eligible citizens are on the voting rolls:

Adding a citizenship question to the decennial census would generate a massive amount of new data concerning the numbers of citizens and noncitizens in U.S. states and counties. To quibble about potential limitations in the data that would be collected is to miss the point. It cannot be the case that we are somehow better off with less

information. The mountain of new data generated by the decennial census question will assist private litigants and the Department of Justice in their efforts to enforce the National Voter Registration Act. Indeed, this data will overcome limitations identified by a federal court concerning the current data on citizenship

The Judicial Watch/AEF brief cites a decision by the U.S. District Court for the Southern District of Florida in Bellitto v. Snipes (No. 16-cv-61474), which criticized the current source for citizenship information, a limited survey called the American Community Survey.  Judicial Watch argued that getting more data about the citizen voting-age population (CVAP) is critical to enforcement of the National Voter Registration Act (NVRA) and the Voting Rights Act.

The brief also joins the Commerce Department in arguing that the lower court overstepped its bounds in blocking the Secretary of Commerce’s decision about what to include:

[A] determination about what to include on a census questionnaire is committed to agency discretion and is unreviewable under the Administrative Procedures Act (APA) [and] a court determining whether an agency action is arbitrary and capricious under the APA may not substitute its judgment for that of the agency.

This Judicial Watch/AEF filing comes in the case U.S. Department of Commerce, et al. v. State of New York, et al. (18-966), which is on emergency appeal to the Supreme Court.  The New York district court decision under appeal was a consolidation of two cases (State of New York, et al. v. U.S. Department of Commerce, et al. (18-cv-2921) and New York Immigration Coalition, et al. v. U.S. Department of Commerce, et al. (18-cv-5025)) challenging the decision of the Secretary of Commerce Wilbur Ross to add a citizenship question to the 2020 census questionnaire.  The district court held that Ross’s decision failed to “comply with the policy decisions that Congress — to which the Constitution gives authority over the census — has made and enshrined in statute, including but not limited to the preference for obtaining data through administrative records rather than through direct inquiries.”

The Judicial Watch/AEF brief responds:

[T]he Department of Justice stated that citizenship data was “critical” to its efforts to enforce Section 2 of the Voting Rights Act and that the decennial census was “the most appropriate vehicle” for asking a question about citizenship.  The Secretary of Commerce agreed.  In so acting, the Secretary rejected the argument that including a citizenship question would reduce the response rate for noncitizens.  The Secretary found that the available data did not support this suggestion and added that the value of “more complete and accurate” citizenship data outweighed the disadvantages that might arise from a lower response rate.

Judicial Watch is the national leader in enforcing the provisions of the NVRA.  In early January, Judicial Watch announced that it signed a settlement agreement with the State of California and County of Los Angeles under which they will begin the process of removing from their voter registration rolls as many as 1.5 million inactive registered names that may be invalid. This was only the third statewide settlement achieved by private plaintiffs under the NVRA – and Judicial Watch was the plaintiff in each of those cases. The other statewide settlements were with Ohio (in 2014) and with Kentucky (2018), which agreed to a court-ordered consent decree.

“Leftists hate the idea of the American people knowing more about the number of foreign nationals present in the United States, which is why they oppose a census question about citizenship,” said Judicial Watch President Tom Fitton.  “The Supreme Court should reject the lower court judicial power grab that would unlawfully restrict the Trump administration from getting more information about the residents of the United States.”