Who Runs the Census? How the bureaucracy takes power away from elected officials.
https://www.wsj.com/articles/who-runs-the-census-11548376332
Another week, another liberal court injunction against the Trump Administration. This month a federal judge blocked the Commerce Department from adding a citizenship question to the 2020 Census. At issue is whether the President and his appointees control the government bureaucracy or the other way around.
Liberals cheered when Obama officials invoked executive discretion to promote political objectives. Yet they’re now accusing Commerce Secretary Wilbur Ross of improperly pursuing political purposes by reinstating a citizenship question on the 2020 census. Whatever his intentions, Mr. Ross acted within the purview granted by Congress.
***
The Constitution directs Congress once a decade to count every resident in the U.S. to reapportion House districts among the states. Congress has delegated Commerce, which houses the Census Bureau, broad discretion over survey subjects and directed the secretary to use statistical sampling if “he considers it feasible” to collect data.
A citizenship question was included until 1960 and later appeared on a long-form questionnaire received by one-sixth of households. The long form was replaced after 2000 by the American Community Survey, which samples about 2% of the population annually.
In December 2017, the Justice Department sent Commerce a memo asking for more granular data on citizenship to better enforce Section 2 of the Voting Rights Act, which prohibits voting practices that discriminate by race. Citizenship could be pertinent in drawing “majority-minority” districts where a large number of residents aren’t eligible to vote.
Liberal groups and 18 or so states that have sued the Trump Administration say Mr. Ross discussed reinstating a citizenship question with then-White House aide Steve Bannon months before Justice sent the memo. They say this evinces illicit political interference. But since when is it illegal for cabinet heads to confer with the President’s staff?
They also cite memos by Census Bureau leadership, at the time comprised entirely of career civil servants, outlining options to collect citizenship data. Census staff argued that a citizenship question could depress response rates by 5.1% among noncitizens and result in an undercount of 154,000.
Staff also opined that responses to a citizenship question might not be accurate. They suggested instead running a mishmosh of data from states and federal agencies through statistical models to infer citizenship. Mr. Ross rejected this approach. In a memo last March, he analyzed the alternatives and decided to reinstate the citizenship question while filling in gaps with administrative data. He acknowledged that response rates might dip but said the Census staff’s preferred option would require imputing citizenship on 25 million people.
Career staff got their revenge by testifying against the Administration at trial. One Census official accused Mr. Sessions of exerting improper “political influence” and violating the bureau’s independence by telling Justice attorneys not to confer with agency staff. They also said Mr. Ross’s decision was unsupported by evidence.
Federal judge Jesse Furman agreed and last week ruled that Mr. Ross violated the Administrative Procedure Act. “Secretary Ross’s insistence on adding the question despite all of these obstacles and objections is strong evidence that he was unwilling or unable to rationally consider counterarguments to his plan,” Judge Furman opined.
In other words, Mr. Ross acted arbitrarily because he disagreed with career bureaucrats and “experts” cited by liberal plaintiffs. But Mr. Ross meticulously detailed his considerations. It seems career staff single-mindedly rejected counterarguments to their plan, perhaps out of bureaucratic inertia or professional bias toward statistical modeling over surveying.
The law says a President’s appointees who are confirmed by the Senate may overrule career staff as long as they provide a rationale bolstered by evidence in the administrative record, which Mr. Ross did. This is important to ensure political accountability in government amid an expansion of the civil service and administrative state.
***
Liberals have accused the Trump Administration of trying to reduce representation for Democratic states by undercounting non-citizens. Yet their own experts at trial said Texas, Arizona and Florida may be harmed as much by an undercount as California, New York and Illinois. If the citizenship question is a right-wing conspiracy, it’s inept.
Judge Furman concluded nonetheless that Mr. Ross and his aides must have been politically motivated since they “acted like people with something to hide.” He enjoined the citizenship question even while acknowledging that the Supreme Court has counseled against sweeping action in such cases. The Census must go to print in June, which leaves little time for an appeal.
The Trump Administration wants the Supreme Court to take up the case immediately, and we hope the Justices do so. One of the greatest threats to self-government is a politically unconstrained administrative state.
Comments are closed.
