Supreme Court e Census. – Il punto di vista dei liberal democratici.

Giuseppe Sandro Mela.

2019-05-14.

La Suprema Corte degli Stati Uniti ha concesso di esaminare il problema dell’inclusione o meno della domanda sulla cittadinanza nel questionario del censimento che prossimamente il Census porterà a termine.

«The Supreme Court will decide whether the 2020 U.S. Census

can include a question about citizenship»

Il tema è scottante e dibattuto: le note già depositate dalle Loro Giustizie illustrano alla perfezioni i diversi punti di vista giuridici.

A livello dei media, invece, si è spesso andati a toni molto sopra le righe, financo tediosamente astiosi.

Si noti come la Suprema Corte sia chiamata ad esprimere il suo alto giudizio solo dal punto di vista giuridico, non dal punto di vista sociologico o politico.

Il The New York Times ha pubblicato un editoriale in materia, che riporta il punto di vista dei liberal democratici, usando però quel linguaggio corrente, anche se usando un inglese colto, che dovrebbe rendere meglio intellegibile il problema in almeno molte delle sue sfumature.

Premesso che non lo si condivide in alcunché, lo riportiamo tuttavia per completezza informativa.

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The New York Times. 2019-05-10. The Supreme Court, the Census Case and the Truth

Will the justices be the administration’s enablers or form a firewall against its lies?

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The smart money says the Trump administration is going to prevail at the Supreme Court in its effort to add a citizenship question to next year’s census. Having read the transcript and listened to the audio file of the recent argument, I don’t challenge that forecast.

Neither am I going to argue with the experts’ prediction that adding the citizenship question, which has been omitted since 1950 from the census form that goes to every household, will lead immigrant families to fail to return the form out of fear caused by the Trump administration’s brutal anti-immigrant policies. The resulting differential undercount will penalize immigrant-rich cities and states in political representation and federal funding.

Harmful as that impact would be on the affected areas, I want to argue here that validating the Trump administration’s cynical hijacking of the census would have a devastating effect on the integrity of the Supreme Court.

Never mind that three Federal District Courts, ruling since the first of the year in three cases, have found the addition of the citizenship question to be procedurally improper or flat-out unconstitutional. There are respectable contrary arguments that might be made, under the Administrative Procedure Act or the Constitution’s Enumeration Clause, or there would be, had the administration acted in the good faith that Judge Jesse Furman, ruling in the case now before the court, found to be conspicuously lacking.

Perhaps the justices who appear poised to overturn the lower-court decisions really believe that Congress has delegated its constitutional census obligation to the secretary of commerce to conduct the enumeration however he wishes without judicial supervision. Maybe they really think that the 18 states suing the Commerce Department lack standing because any harm that befalls them from the citizenship question is due not to the government but to the “illegal” acts of immigrants who fail to answer the census. These propositions constitute the core of the administration’s argument. If the justices are honestly persuaded by them, well, that’s litigation for you. It’s a zero-sum game in which someone wins and someone loses.

But if the plaintiff states are going to lose, it seems to me that it matters greatly how they lose. What was depressing and even scary about the April 23 argument was the disingenuous lengths to which the conservative justices were willing to go to tilt the case in the administration’s favor. They played dumb. They pretended not to know what they surely knew: that the citizenship question will depress the census count in a way that is predictably harmful and that the administration’s brief concealed the real story of how the citizenship question made its way onto the census. In other words, I have enough respect for the justices’ basic intelligence, which includes the ability to read the same briefs and opinions that I read, to conclude that they know full well what game is afoot.

Don’t take my word for it. Read the transcript. The conservative justices were at pains to challenge the very idea that the citizenship question could depress noncitizens’ response rates, despite the fact that numerous Census Bureau studies have shown that to be the case. “What jumps out,” Justice Samuel Alito said to Solicitor General Barbara D. Underwood of New York, “is the fact that citizens and noncitizens differ in a lot of respects other than citizenship. They differ in socioeconomic status. They differ in education. They differ in language ability.” And so, he went on, “I don’t think you have to be much of a statistician to wonder about the legitimacy of concluding” that the response rate would go down “because of this one factor.”

Justice Neil Gorsuch weighed in. “There could be multiple reasons why individuals don’t complete the form.” He continued: “We don’t have any evidence disaggregating the reasons why the forms are left uncompleted. What do you do with that? I mean, normally we would have a regression analysis that would disaggregate the potential cause and identify to a 95th percentile degree of certainty what the reason is that persons are not filling out this form and we could attribute it to this question. We don’t have anything like that here. So what are we supposed to do about that?”

Justice Alito then returned to his theme. There were “many factors that could explain a decline when you’re distinguishing between citizens and noncitizens,” he said.

When Ms. Underwood started to explain that the Census Bureau studies had controlled for the differences, Justice Gorsuch broke in. “It’s fair to say we don’t have this isolated, though, isn’t it?” he asked.

At this point in the transcript, Justice Stephen Breyer’s exasperation with his colleagues almost jumps off the page. “There are a million factors,” he said with evident sarcasm. “There are pet dogs, you know. I mean, there are cats.”

It fell to Justice Elena Kagan to bring the argument back to earth. “Would it be right to say, General,” she said to Ms. Underwood, “that it was the Census Bureau’s conclusion, a bureau full of statisticians, that it was the citizenship question that was driving the differential response rates?”

“That is correct,” Ms. Underwood replied.

Among the other conservative justices, Justice Clarence Thomas, as is his custom, said nothing, and Justice Brett Kavanaugh said relatively little. Chief Justice John Roberts didn’t join in the game that Justices Alito and Gorsuch were playing, but he did seem strangely obtuse when he observed to Ms. Underwood that “we’ve had demographic questions on the census, I don’t know how far back, but certainly, it’s quite common. Sex, age, things like that. ‘Do you own your house?’ ‘Do you own a radio?’ I mean, the questions go quite beyond how many people there are.”

The chief justice’s observations, while accurate, made no sense in the context of this case, as Ms. Underwood diplomatically pointed out. “We have no comparable evidence about any of those other questions that they depress the count in this substantial a way and in this disproportionate a way,” she said.

And what is there to say about Solicitor General Noel Francisco’s argument for the Trump administration? It’s part of our current national tragedy that an allergy to the truth has infected the Department of Justice from the top down. Mr. Francisco maintained in both his brief and his oral argument that it was the Justice Department that urged Wilbur Ross, the secretary of commerce, to add the citizenship question, ostensibly to provide for more precise enforcement of the Voting Rights Act. Aside from the fact that the Trump administration has shown no interest in protecting voting rights and that no administration has asked for a citizenship question in the 54 years since the Voting Rights Act of 1965 became law, there is one problem with the solicitor general’s narrative: It is demonstrably untrue.

According to the record methodically compiled in Judge Furman’s District Court courtroom, Secretary Ross was urged to add the citizenship question by Steve Bannon, a White House adviser at the time, and the anti-immigrant crusader Kris Kobach. Mr. Ross shopped the idea around the federal government for a year and was initially turned down by the Department of Homeland Security as well as the Justice Department. He finally made a direct pitch to Attorney General Jeff Sessions, who agreed to get him a letter that would request the citizenship question and provide the Voting Rights Act rationale — the rationale that Judge Furman called pretextual.

So when Mr. Francisco told the justices that there was “no evidence in this record” that Secretary Ross would have added the citizenship question “had the Department of Justice not requested it,” he was at that moment the luckiest person in the courtroom: The red light on the lectern came on, indicating the end of his argument time. No one could ask a follow-up question, including Justice Kagan, who earlier had observed to Mr. Francisco that “you can’t read this record without sensing that this need is a contrived one.”

This sordid tale might be just so much inside-the-Beltway gossip except that it goes directly to the legal matter at hand in the pending case, Department of Commerce v. New York. The administration is demanding deference to its decision on what to ask on the census. Yet experts at the Census Bureau have testified that asking the citizenship question will make the 2020 census less accurate. As Solicitor General Underwood of New York put it in her brief for the plaintiffs, addressing the Justice Department’s purported request for the question, “Settled principles of administrative law foreclose any deference when a decision maker falsely claims to rely on the expertise of another agency to defend its determination.”

The basic legal claim of New York and the other states is that adding the citizenship question is “arbitrary and capricious,” in violation of the Administrative Procedure Act. As the states’ brief explains: “A decision maker acts arbitrarily by purporting to rely on another agency’s expertise when, in fact, the decision maker instructed that agency rather than the other way around. Such illusory reliance undercuts the foundational premise for judicial deference to administrative action: that the decision resulted from an exercise of specialized expertise that courts lack. When a decision maker purports to rely on an exercise of expert judgment that never happened, there is nothing to which the courts can defer.”

In the administration’s brief, Mr. Francisco complains that “until now no court has seen fit to police the contents of the decennial census questionnaire by even entertaining an arbitrary-and-capricious challenge, let alone upholding one.” Could the reason be that no administration before this one thought to pull off such a trick? But this one did, leaving the Roberts court with a choice: It can be the administration’s enabler or it can acknowledge the truth and be a firewall. That choice is a fateful one, for the court and for the rest of us.