The Legal Path to Adding a Census Citizenship Question

Refuting the intellectual dishonesty of Nancy Pelosi and her open borders comrades.

To prove her creds to the far-left crowd, House Speaker Nancy Pelosi on Monday accused President Trump of pushing for a citizenship question on the 2020 census to “Make America White Again.” She declared, “it’s not what our founders had in mind.” Speaker Pelosi should read some history about what the founders actually had in mind and the long history of the census citizen question before fulminating.

Thomas Jefferson first recommended back in 1800 an inquiry to collect more detailed data about the “inhabitants of the United States” beyond simply a counting of the overall population. This would include an inquiry into “the respective numbers of native citizens, citizens of foreign birth, and of aliens.” The purpose of such an inquiry, this founding father said, was to “more exactly” distinguish “the increase of population by birth and immigration.” Beginning in 1820, at a time when founding fathers Thomas Jefferson, James Madison and John Adams were still alive, the census included a question asking how many “foreigners not naturalized” lived in each household. This question was asked at various intervals between 1820 and 1890, and then in every census until 1950. After a 20-year lapse, the citizenship question appeared again in the long-form census questionnaire from 1970 through 2000.

The Supreme Court last month decided to push the pause button on adding the citizenship question to the 2020 census until the Trump administration can come up with a more credible rationale than its belated explanation that it was seeking the information to enforce the Voting Rights Act. In his 5-4 majority opinion, Chief Justice John Roberts, siding with the four liberal justices, wrote that “we cannot ignore the disconnect between the decision made and the explanation given.” However, he also made it clear that the Court was not ruling that the citizenship question was “substantively invalid.” Moreover, he wrote that “a court may not reject an agency’s stated reasons for acting simply because the agency might also have had other unstated reasons.”

Most importantly, Chief Justice Roberts provided an opportunity for the Trump administration to fix what amounts at most to a technical deficiency in providing an explanation for the citizenship question that the Court deems to be sufficiently credible.

President Trump has vowed to press on with finding a way to include the citizenship question in the 2020 census. Attorney General William P. Barr backed the president, stating that he was “right on the legal grounds.” Without providing any details, the attorney general indicated that he believed there was a legal path the administration could find to incorporate the question. All that was needed was to “clarify the record in time to add the question.”

Sometimes the correct legal path is also the simplest. For example, as one suggestion, President Trump can issue an executive order or presidential memorandum tied to Executive Order No. 11935, which President Gerald Ford had issued on September 2, 1976 to bar aliens from virtually all positions in the federal civil service. Under Executive Order 11935, only United States citizens and nationals (residents of American Samoa and Swains Island) may compete for competitive federal jobs. Agencies are permitted to hire non-citizens only when necessary to promote the efficiency of the service in specific cases or for temporary appointments. President Ford stated, in explaining the rationale for his executive order, that he believed “it is in the national interest to preserve the long-standing policy of generally prohibiting the employment of aliens from positions in the competitive service . . .. It is also my judgment that it would be detrimental to the efficiency of the civil service, as well as contrary to the national interest, precipitously to employ aliens in the competitive service without an appropriate determination that it is in the national interest to do so.”

The United States Court of Appeals for the 9th Circuit determined that Executive Order No. 11935 was within the president's authority and was not in violation of the due process clause of the Fifth Amendment. The 9th Circuit decision “rests in part on the President's authority to issue the executive order pursuant to his powers over foreign affairs and treaty negotiations,” which in turn “arises from the Constitution, rather than from any delegation.” Moreover, the 9th Circuit opinion referred to the federal statute (now cited as 8 U.S. Code § 1182 (f)), which “specifically grants the President, where it is in the national interest to do so, the extreme power to prevent the entry of any alien or groups of aliens into this country as well as the lesser power to grant entry to such person or persons with any restriction on their entry as he may deem to be appropriate.” (Emphasis in the original)

Notably, the Supreme Court declined to review the 9th Circuit ruling. Thus, the ruling still stands.

It is no stretch at all for President Trump to issue either his own executive order or a presidential memorandum directing that the citizenship question be added to the census for the purpose of more effectively enforcing Executive Order No. 11935. Citizenship data acquired through the census can be used to more efficiently manage and monitor the lawful hiring of federal employees for positions in the competitive service by shedding light on how many persons claim to be U.S. citizens. Next, the administration could petition the Supreme Court to immediately vacate the current district court cases challenging the citizenship question as moot. Finally, in view of the time-sensitivity for printing the 2020 census forms, the Supreme Court should undertake itself a fast track review of the executive order or presidential memorandum and accompanying explanation for the citizenship question on their own merits.

It is patently absurd to charge that the citizenship question is anti-Hispanic when a census question on Hispanic origin, as well as one on race, have been census staples for decades. Does Nancy Pelosi believe that these questions have remained in the census to “Make America White Again?”  She has not made that charge. Nor should she do so regarding the citizenship question. But the speaker and her leftist open borders cohorts are anything but intellectually honest or interested in protecting American citizens.

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Photo by Pete