Census

Blame Wilbur Ross's Clumsy Lies for the Census Mess

The commerce secretary could easily have reinstated the citizenship question if he had been less transparently dishonest.

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If you want to understand why the Trump administration is scrambling at the last minute to include a citizenship question in the 2020 census, you have to look beyond the lawsuits filed by Democrats anxious about the question's political impact. The only reason that litigation produced a June 27 Supreme Court decision blocking the question was the blatant, bumbling mendacity of Commerce Secretary Wilbur Ross, whose rationale for the change Chief Justice John Roberts and four of his colleagues deemed "contrived" and "pretextual."

Whether that conclusion should make a legal difference is a matter of dispute; four justices thought it shouldn't. But if Ross, whose department includes the Census Bureau, had told the truth, or even if he had been better at lying, census forms with the citizenship question would already be rolling off the presses.

The evidence that Ross's official explanation—that the Justice Department needed better data to enforce the Voting Rights Act (VRA)—was not the real reason for his decision persuaded three federal judges as well as a majority of the Supreme Court. It is not hard to see why.

"In the Secretary's telling," the Court said, "Commerce was simply acting on a routine data request from another agency. Yet the materials before us indicate that Commerce went to great lengths to elicit the request from DOJ (or any other willing agency)."

That record shows Ross "began taking steps to reinstate a citizenship question about a week into his tenure, but it contains no hint that he was considering VRA enforcement in connection with that project." After making the decision for reasons he has yet to reveal, Ross spent months trying to gin up a respectable excuse.

Under Ross' instructions, his policy director "initially attempted to elicit requests for citizenship data from the Department of Homeland Security and DOJ's Executive Office for Immigration Review, neither of which is responsible for enforcing the VRA," the Court said. "After those attempts failed, he asked Commerce staff to look into whether the Secretary could reinstate the question without receiving a request from another agency."

The VRA rationale originated not with the Justice Department, as Ross repeatedly claimed, but with Commerce Department staffers trying to satisfy their boss's demands. The DOJ was unwilling to write this cover story until Ross persuaded the attorney general to intervene, and even then, "the record suggests that DOJ's interest was directed more to helping the Commerce Department than to securing the data."

The DOJ letter requesting a citizenship question was not written until nine months after Ross had made his decision, and it "drew heavily on contributions from Commerce staff and advisors." Furthermore, "after sending the letter, DOJ declined the Census Bureau's offer to discuss alternative ways to meet DOJ's stated need for improved citizenship data," reinforcing the impression that the VRA justification was phony.

Why does it matter? "In order to permit meaningful judicial review, an agency must 'disclose the basis' of its action," the Court said. "The reasoned explanation requirement of administrative law…is meant to ensure that agencies offer genuine justifications for important decisions, reasons that can be scrutinized by courts and the interested public."

The Court left open the possibility that the Commerce Department could try again, this time without lying. It noted that the commerce secretary has wide discretion to determine the contents of the census and that review of such decisions is "deferential."

The Trump administration now faces two problems. First, while there are plenty of plausible, nonpartisan reasons for asking about the legal status of U.S. residents in the census, coming up with one at this late date will smack of desperation.

Second, the administration has insisted all along that it had to start printing forms by last week in order to keep the census on schedule, which is why its appeal in this case went straight to the Supreme Court. The administration has weaved a tangled web for itself that will be hard to escape.

© Copyright 2019 by Creators Syndicate Inc.

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  1. Seriously?? You believe that the agents of the federal government should lie better to subvert the rule of law?? Good grief. If a good reading of the SCOTUS ruling and opinions is any guide, John Roberts wanted nothing other than to allow the question. But he could not since the administrative consequences are serious. Thereafter any kind of administrative lie or pretext wins in federal court and there is no way that can happen. SCOTUS look very much like a political and legal enabler for Trump and the Republican party to do pretty much whatever they want. That very much puts you on a slippery slope to SCOTUS being the American equivalent of the Nazi Peoples Courts, where political decisions overtake legal considerations.

    1. The legal considerations are clear: the executive branch can put those questions on there for any reason.

      1. “Blame Wilbur Ross’s Clumsy Lies for the Census Mess”

        I blame judicial authoritarianism. And Trump punking.

        Trump should have printed up the census as is and told the judicial authoritarians to pound sand.

        At some point, someone has to confront judicial authoritarians and tell them they’re not kings and we’re not their slaves.

    2. You know, the Nazi!!!! thing is just getting tiresome. Any comparison of current day America to Nazi Germany is laughable, and any opinion that brings it up is immediately dismissable as coming from an idiot.

      1. so just look the other way and don’t speak up if we’re headed that direction?

      2. Which historical parallel would you like? How about the Special Revolutionary Tribunals of Communist Russia. Those tribunals by definition followed the interests of the revolution and were not bound by any dithering over the forms of legal proceedings. It the people of the Revolution wish to lie to suppress political opponents they can. Maybe the Revolutionary Tribunals of the French Revolution are more to your liking? There are quite a few more. All of them were of a piece: the legitimacy of the court was used to justify illegitimate political actions against political opponents.

        I am certain a critic of Nazism in Germany was accosted by some young Nazi and told not to whine about the Russian or the French Tribunals. No comparison whatsoever. “You know, what’s with the Russian thing!!!! …..” Yep the ravings of an idiot.

        1. Yes, your ravings are idiotic

      3. The Nazi thing is stupid, but the fact is that the Judiciary has been the thin end of the wedge for the lawless deep state for almost a century now.

        When judges just make shit up, it isn’t law, it’s deep state tyranny.

        If we want rule of law, they must be removed from power, either by being ignored or by being impeached.

  2. “This time without lying.”

    The answer to the question ‘what was the genesis of this prospective reasoning, and the reasoning underlying the proposal, when the question was originally advanced for inclusion in the census form’ is not likely to have changed. If Ross testifies truthfully, the administration’s misconduct will sink it. If Ross lies again, the consequences could be even worse for the administration (Ross in particular).

    1. Ross should tell SCOTUS to go pound sand and put the question on there anyway. The idea that exercise of executive powers is subject to legal review based on motivations is absurd.

      1. https://www.law.cornell.edu/uscode/text/5/706

        Relevant section:

        To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. The reviewing court shall—

        (2) hold unlawful and set aside agency action, findings, and conclusions found to be—
        (A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;

        It’s not hard to imagine that intentionally lying about one’s motivations for a regulatory action constitutes “an abuse of discretion”.

        1. So, set aside the testimony?

          You are confusing the lying as an abuse of discretion, with the question as an abuse of discretion.

        2. How does adding a question to the census amount to “regulatory action”? Who is being “regulated”?

          And what “discretion” has been abused in bringing back a question that has been on the Census before and clearly has a rational basis?

          1. Lefties “know” that the Russkies put Trump up to asking the Citizenship question on the Census and his cabinet members wont admit it!

      2. “The idea that exercise of executive powers is subject to legal review based on motivations is absurd.”

        Is that a right-wing law degree (Ave Maria, Liberty, Regent) talking, or a less-uninformed observation?

      3. “Ross should tell SCOTUS to go pound sand and put the question on there anyway. ”

        Print it up that way. Put Scotus on the hook for trying to abort the Census. Let’s see if they have the stones for it.

        The judicial authoritarians have to be confronted some day. This is as good a time as any. It’s manifestly constitutional to put a citizenship question on the Census with over a century of precedent.

        From census.gov
        The doc linked has charts for common questions on the census starting at page 121.
        The census has asked place of birth and citizenship from 1870 to 2000.
        Parents place of birth from 1870 to 1970.
        https://www.census.gov/history/pdf/measuringamerica.pdf

  3. No, I blame SCOTUS.

    The administration shouldn’t have to provide a justification for asking the citizenship question. It clearly has the authority to do so and courts have no business examining their motivation.

    1. No, the Constitutional requirement to count *all* persons should not confer the power to deliberately sabotage the process and cause an undercount. When the question was previously included, we didn’t have evidence of that, now the government experts themselves recognize that consequence, and further there wasn’t the motive to lie back then.

      These points were brought up over on Volokh, and at the very least raise a justiceable constitutional question.

      1. Haha. Poor reason.

        The SCOTUS majority said that the citizenship question is perfectly okay and the government has wide latitude on what the Census should include.

        The media is lying its ass off as if Trump’s strategy lost. Trump won. The SCOTUS remanded the case to a lower court and the printing of Census surveys would likely begin before the lower court resolved the matter.

        Trump’s ace-in-the-hole is that Census takers can ask follow up questions of citizenship, even if the citizenship question is not printed on the Census form.

      2. The US Constitution does not require a count of ALL persons.

        US Constitution, Article I, Section 2:
        […]
        Representatives and direct taxes shall be apportioned among the several states which may be included within this union, according to their respective numbers, which shall be determined by adding to the whole number of free persons, including those bound to service for a term of years, and excluding Indians not taxed, three fifths of all other Persons.

        1. To bad direct taxes aren’t apportioned among the states according to population anymore.

        2. It requires a COUNT of all persons, but not an APPORTIONMENT according to all persons.

          But we can’t have a debate on apportionment if we don’t have proper classification of the persons.

          1. APPORTIONMENT… shall be determined by adding to the whole number of free persons, including those bound to service for a term of years, and excluding Indians not taxed, three fifths of all other Persons.

            Of course, the 14A, changes how the House Apportionment count is done. It still excludes a group of potential residents in a state, which are Indians not taxed.
            Amendment XIV, Section 2.
            Representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state, excluding Indians not taxed.

            1. The catch is that 14A likely says that we need to count every person in each state, including illegals.

              This makes catching and deporting every single illegal even more important. Hence the citizenship question on the Census to find out who is here illegally, deport them, and then not count them because they are no longer inside the USA.

        3. The principle that’s applied in other contexts is that if you entered the US illegally, you’re treated as if you are not present at all. That’s the principle we should apply to the Census and Congressional districts as well.

          1. I think the 14A clearly mandates that every person (man, woman, child, illegal alien, permanent resident alien) be counted. Indians, not taxed are specifically excluded.

            This makes deporting every last illegal alien even more important and constitutional under Article I, Section 9, Clause 1, which allows the federal government to regulate immigrants as of 1808.

            1. A Trump move would be to rename all illegals “Indians not taxed”, and not count them on the Census.

              Technically it would be accurate since Mexicans and other South Americans are always bragging about their Indian heritage.

              It would piss off some AmerIndians to no end.

            2. As I was saying, in other legal contexts, “person within a state” does not refer to people who entered illegally in the first place; they are treated as never having entered the US at all.

            3. Not everyone. Tourists are not included.

      3. The question, in and of itself, does not impact the ability of the census to be accurate count of everyone. Non-citizens–especially non-citizens who are legally present–can simply respond to the census, answer the question “No” and go on with their day.

        It’s only Democrats and people who project their own racism onto everything that think that non-citizens–specifically by their assumptions brown illegal aliens–will run screaming into the night rather than answer the census questions.

        1. Illegals might not answer the Census and I don’t care.

          Democrats really want illegals to be counted as Democrats wanted slaves to be counted the same as a US Citizen.

          Its the same bullshit where illegals are not allowed to vote as slaves were not allowed to vote but Democrats get more control of the government with non-voters being counted. This way, a Democrat vote actually counts for more than one person.

          1. Stomping conservatives in the culture war has been a pleasure.

            Watching the clingers celebrate as if they have been the winners, or plan as if they have a chance to turn the tide, is entertaining.

            1. “If you want a picture of the future, imagine a boot stamping on a human face — forever.”

              The word you’re looking for is stamping, not stomping.

            2. Stomping conservatives in the culture war has been a pleasure.

              Naturally. People like you delight in politically motivated violence.

          2. Stomping Lefties in the culture war has been a pleasure.

            Watching the clingers celebrate as if they have been the winners, or plan as if they have a chance to turn the tide, is entertaining.

        2. Non-citizens–especially non-citizens who are legally present–can simply respond to the census, answer the question “No” and go on with their day.

          And if the Census data was cross-referenced with ICE data or State Department data….

          1. Which does happen to be illegal.

            1. It’s also happened before.

              https://www.snopes.com/fact-check/census-bureau-japanese-americans/

              I do not trust the state to not use this information for formally illegal purposes. Look at how they treat “metadata” after all.

              1. Yes, it’s happened before, and at such time as another Democratic administration decides the secrecy of Census replies is inconvenient, it will happen again. I suppose it’s possible some future Democratic administration will turn on the illegals, having used them as a stepping stone to power.

                In the mean time, what’s perfectly legal is the census providing the ICE with block level data. It’s only the individual questionnaires that are legally barred from being released.

                1. Exactly Brett. Lefties are okay with government being the Nanny and Police State and THEN decide when to use the information.

                  Lefties have used this tactic for a long time. They did it with gun licensing and registries as innocent record keeping, then sought to use that info to confiscate guns.

          2. And even if it were, so what?

            1. The day of your replacement will be a great day for America, J W.

              1. Well, if you succeed in turning the US into the kind of shithole third world nation you so desire to live in, I’ll leave.

                Until then, I’ll fight ignorant, uneducated, bigoted clingers like you, Kirkland.

        3. It’s only Democrats and people who project their own racism onto everything that think that non-citizens–specifically by their assumptions brown illegal aliens–will run screaming into the night rather than answer the census questions.

          Yeah, it must just be racism that is the justification for objecting to the state trying to entrap undocumented immigrants, who are Constitutionally entitled to be counted in the Census.

          1. Actually, illegals are not Constitutionally entitled to be counted in the Census; that’s been merely common practice.

            I also don’t see how this is about “race”. Most Hispanics are white Europeans, the descendants of Spanish imperialists.

          2. Poor Chemjeff cannot articulate what “race” Americans are to even be racist as a nation.

        4. “The question, in and of itself, does not impact the ability of the census to be accurate count of everyone. Non-citizens–especially non-citizens who are legally present–can simply respond to the census, answer the question “No” and go on with their day.”

          I am grateful for the opportunity my children and grandchildren will have to compete economically with Trump supporters.

          Thanks, clingers!

          1. Indeed, Kirkland, you are so economically ignorant that you think that’s a good thing.

      4. Only morons think it would sabotage the results more than any other question on the census. Plus there is the issue of part 2 of the 14th amendment which requires knowledge of the number of citizens.

        1. Actual text since baby jeffrey is unable to search for things.

          “the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such state.”

          The 14th requires a knowledge of the number of citizens in order to properly be utilized.

          1. No it doesn’t. All your quotation says is that IF citizens are denied the right to vote in a state, THEN the state’s representation is reduced proportionately to the number who are disenfranchised. All that the state is required to know is if a citizen was disenfranchised, NOT how many citizens there are in total.

            1. “All that is required…”

              You can’t do the reapportionment calculation without the count of citizens.

              Is it possible you’re that stupid? My money is on dishonest first, then simply delusional.

          2. Here is the full text of Section 2 which makes this meaning clearer.

            Section 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

            1. “reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.”

              Um, how do you plan to know the denominator for this calculation?

              1. Example:

                Census determines the state of Elbonia has 5,000,000 residents, both citizens and non-citizens.

                The state government of Elbonia disenfranchises 100,000 citizens and prevents them from voting.

                So, according to the Fourteenth Amendment, the apportionment of representatives for the State of Elbonia would be treated as if the state actually had 4,900,000 residents instead.

                No need to know how many of the original 5,000,000 were citizens or not. All that’s needed to be known is if those 100,000 disenfranchised were citizens or not. And since elections are purely a state-level affair (or lower), there is no need for the Census to get involved in this question.

                1. Look, you’re not explaining how the information isn’t needed. You’re explaining how you would violate the text of the amendment.

                  As Bubba says, you’re proposing to do the calculation without knowing the denominator.

                  Let’s say the state of Elbonia has 5,000,000 residents, of which 4,000,000 are citizens, 2,000,000 are male citizens.

                  500,000 people get disenfranchised. Let’s pretend non-citizens never ever vote, so they’re all citizens. 250,000 of them are male citizens.

                  The state of Elbonia has its representation reduced to 1,750,000/2,000,000 of its prior level, or by 12.5%

                  If we used YOUR (Unconstitutional!) proposal, it would be reduced to 4,750,000/5,000,000 of its prior level, or by 5%.

                  Different results, because you’re proposing to use both the wrong numerator, AND wrong denominator.

                  1. And I make a mistake, too. 4,500,000/5,000,000 or 10%, which is STILL not 12.5%.

                    Look, I understand that you might not like the 14th amendment distinguishing between “male citizens” and “people”, but that’s the amendment that got ratified, not the one you’d have drafted in its place.

                2. ” the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.”

                  It’s fascinating to watch racebaiterjeff pretend not to comprehend 3rd grade math.

                  Citizens in the numerator, citizens in the denominator.

                  such male citizens
                  ——————————————————
                  whole number of male citizens twenty-one years of age

        2. “Only morons think it would sabotage the results more than any other question on the census”

          Those morons include the Republican party, today’s Right, and Trump’s White House – because there’s a clear slime trail proving they want the question because it will result in an under-tally in the millions. That (they believe) will ensure more favorable House districting lines. It’s no different than the GOP’s “voter fraud” crap. The lies are transparent, the justification is specious, the aim is to ensure people don’t count…..

          1. Voter fraud, just like illegal immigration and welfare fraud, is just a right wing nazi myth conspiracy!

            1. Judging by the evidence supporting the GOP’s hysterical charges? Sure. Right Wing Nazi Myth.

              Now if you have new evidence to suggest otherwise, we’ll listen.

              But you have nothing……..

              1. Your behavior, as well as the behavior and policies of sanctuary states/cities, is evidence.
                Let’s review the rolls, no?

                1. Yep. Just as I said. A lot of bullshit and no evidence……

                  1. Why do you fear the question then?

                    1. Hell, you had a whole commission designed to produce your “evidence”, hand-picked by Trump and led by a Birther-style “voter-fraud” loon. It was a corrupt bungling mess – which found nothing because there’s nothing to be found. If you’re actually dumb enuff to believe the Right’s voter fraud bullshit you must be the biggest dupe God ever created. If Kris Kobach found zilch after being unleashed with full government power to perform his tin-foil-hat magic, what are the odds on your little fantasies?

                    2. Yea, all those governors refused to allow access to their data and records because there was nothing to find…

        3. “Only morons think it would sabotage the results more than any other question on the census.”

          The evidence indicated those morons included Secretary Ross; the Republican Party; right-wing redistricting operatives; Kris Kobach; and Steve Bannon. Why do you think they pushed so hard for the question, then lied about it so brazenly?

          Get an education, clinger.

      5. (1) Asking the question does not cause an undercount. People not answering the Census are causing the undercount. They are breaking the law be and should be punished accordingly.

        (2) If you entered the country illegally, you are not a person in the United States in the legal sense; you shouldn’t be counted in the first place. The fact that such people are counted is long standing bad practice that needs to be reversed.

        1. You do realize that it is illegal to refuse to respond to the Census, or to leave a question blank, don’t you?

          So asking the citizenship question on the Census is a type of entrapment of undocumented immigrants. If they answer the question, they are incriminating themselves. If they don’t answer the question, they are breaking the law.

          It’s entrapment of undocumented immigrants who do have a Constitutional right to be counted in the Census. Which is exactly what Team Red wants to see happen.

          1. “Entrapment” is when police trick people into violating the law. Illegal migrants have already violating the law; asking them about it is not “entrapment”.

            Furthermore, this is how US immigration law works for legal immigrants as well: you are asked questions that you must answer truthfully, even if a truthful answer makes you ineligible for immigration. If you are later found out to have lied, then simply the lie itself may be grounds for revocation of citizenship even if the thing you lied about would not have been sufficient to deny your application. Heck, it’s how federal prosecutors constantly put people away for years.

            But of course people like you don’t give a f*ck about legal immigrants like myself. We can go to hell as long as you can advance your political agenda of destroying this country.

            1. “Entrapment” is when police trick people into violating the law. Illegal migrants have already violating the law; asking them about it is not “entrapment”.

              I am using the term “entrapment” in a broader sense rather than in the technically legal sense. The Census puts undocumented immigrants into either breaking the law against refusing/lying about Census questions, or incriminating themselves as undocumented. The Census is not merely “asking”, everyone is *compelled by law* to answer it.

              Furthermore, this is how US immigration law works for legal immigrants as well: you are asked questions that you must answer truthfully, even if a truthful answer makes you ineligible for immigration.

              Individuals who apply for legal residency are not *compelled by law* to apply. That is the difference. IF THEY CHOOSE to apply, they have to answer truthfully. If they don’t wish to incriminate themselves in a crime, then they don’t have to apply. The Census is different than that.

              your political agenda of destroying this country.

              lol yeah whatevs, “destroy the country”

              1. Illegal aliens are already breaking the law

              2. No, illegal aliens are not forced to “incriminate themselves” because (1) the Census is not a legal proceedings and (2) they aren’t asked whether they are in the country illegally, merely whether they are citizens.

                In other words, your reasoning is bullshit from start to finish.

          2. Illegal aliens, not undocumented immigrants, you progressive fuck up.

          3. Assuming citizens of other countries in the US are automatically criminals sounds rather racist, racebaiterjeff.

            Tsk! Tsk! Tsk!

    2. L’etat c’est Trump!

      1. Trump is the duly elected president and he has a wide range of executive powers, including this one. He also happens to be doing in this case what the vast majority of Americans want.

        You and people like you are advocating a tyranny of the judiciary, against the Constitution and against the will of the American people. And you have the gall to pretend that your illegitimate and tyrannical position somehow amounts to a defense of democracy and freedom.

        1. Trump is the duly elected president and he has a wide range of executive powers, including this one.

          Therefore, emperor!

          He also happens to be doing in this case what the vast majority of Americans want.

          Appeal to the mob!

          You and people like you are advocating a tyranny of the judiciary,

          Strawman!

          against the Constitution

          Falsehood!

          and against the will of the American people.

          Another appeal to the mob!

          And you have the gall to pretend that your illegitimate and tyrannical position

          Begging the question!

          somehow amounts to a defense of democracy and freedom.

          Another strawman!

          1. Under what interpretation of the law is asking if someone is a citizen illegal? Spare me the totalitarian fascist bullshit and mob rule!!! stuff and answer rationally.

            1. See my comment above. The illegal part IMO is when Wilbur Ross decided to be a lying shitweasel about his motivations for asking the question.

              1. Ross was a lying shitweasel, but assume he wasn’t. What legal justification does the DOC need beyond “it’s within our power in the law to do this”?

                1. I personally think there are serious Fifth Amendment concerns here.

                  Undocumented immigrants would be *compelled by law* to self-incriminate. That seems wrong.

                  1. Or they could just decline to return the form. Or lie on it and check the citizen box. They aren’t really being compelled to do anything – they’re already in violation of the law by being here.

                    1. Or they could just decline to return the form. Or lie on it and check the citizen box.

                      Those are both crimes.

                      https://people.howstuffworks.com/question345.htm

                      So with a citizenship question, undocumented immigrants are entrapped – they either must break the law and refuse/lie on the census, or they must self-incriminate and answer truthfully.

                    2. they’re already in violation of the law by being here.

                      The Fifth Amendment prohibits individuals from being compelled to incriminate themselves, even if those individuals really are guilty.

                    3. “So with a citizenship question, undocumented immigrants are entrapped – they either must break the law and refuse/lie on the census, or they must self-incriminate and answer truthfully….The Fifth Amendment prohibits individuals from being compelled to incriminate themselves, even if those individuals really are guilty.”

                      Yeah, I know. Thanks. The point is that undocumented immigrants are already in violation of the law anyway.

                      Unlike the majority of the folks on here, I’m not all worked up about illegal immigration. But I’m sick to death of the politically zealous arguing over trivial shit and denying simple facts.

                    4. The Fifth Amendment applies to legal proceedings. Not only is the US Census not a legal proceeding, it can’t be used as the basis for a prosecution.

                      Furthermore, the Census isn’t asking whether they are here illegally, but merely whether they are citizens. Plenty of non-citizens are in the US legally, so answering “no” isn’t an admission of illegal conduct or “self-incrimination”.

                      In any case, the 5A doesn’t apply to immigration in the first place; immigrants are compelled by law to provide information that may be detrimental to their application. Furthermore, failure to answer truthfully is itself sufficient justification for denial of an application or even retroactive revocation of citizenship.

                    5. immigrants are compelled by law to provide information that may be detrimental to their application.

                      If immigrants CHOOSE TO APPLY for legal residency. No one is COMPELLED BY LAW to apply. That is different than the Census, in which everyone is COMPELLED BY LAW to fill it out, legal resident or not.

                    6. Neither immigration nor the census are criminal prosecution, therefore prohibitions against self-incrimination don’t apply, no matter how much you may like to.

                      The government can compel you to provide information that is detrimental to your personal interests in many contexts. Take it from an immigrant: there are many situations where you are compelled by law to state whether you are a citizen, with serious penalties if you lie. Taxes are another example.

                      In addition, you keep ignoring the fact that answering “I am not a citizen” on the Census is would not be self-incrimination even in a broader sense, since (1) many people are not citizens yet are in the country legally, and (2) the Census by law cannot be used for criminal prosecution or immigration enforcement.

                  2. They are not being asked to “self-incriminate” because the Census isn’t a legal proceedings and it isn’t, and can’t be, used for prosecuting them for a crime.

                    However, what you are concerned about here certainly applies to legal immigrants: we have to answer questions truthfully even if such answers result in a rejection of our application. Furthermore, untruthful answers are sufficient justification for retroactively revoking citizenship. That’s the way immigration law works.

                    1. it isn’t, and can’t be, used for prosecuting them for a crime.

                      I frankly don’t believe that the current bunch in power now won’t try to weaponize the Census to use it as a basis for deporting all the illegals.

                      Just like you ask below: “Well, so what if Census data is cross-referenced with ICE data or State Department data? What’s the big deal, anyway?” This is what you WANT to happen, isn’t it?

                    2. I frankly don’t believe that the current bunch in power now won’t try to weaponize the Census to use it as a basis for deporting all the illegals.

                      Well, and even if that were to happen, the question “are you a citizen” would still not constitute self-incrimination, since deportation is not a criminal proceedings and since being a non-citizen is not a crime. Therefore, your argument that 5A protections apply is wrong, on several counts.

                      Just like you ask below: “Well, so what if Census data is cross-referenced with ICE data or State Department data? What’s the big deal, anyway?” This is what you WANT to happen, isn’t it?

                      As a legal immigrant and US tax payer, I want all people in the US illegally to be forced out of the country. But I don’t think the Census is a particularly effective means for that. It would be far easier to require the inclusion of citizenship/immigration status on Real ID and make Real ID mandatory for banking, jobs, welfare, housing, medical services, and schooling.

              2. And where exactly does it say that “being a lying shitweasel” is illegal for a cabinet member?

                Can we invalidate Obama’s policies on those grounds too? Because Obama’s cabinet members lied on just about any justification Obama’s policies, foremost the ACA.

          2. Tump was elected to a position that comes with specific functions and specific powers. It is you who wants to undermine those powers and the rule of law because you don’t like the outcome and consequences of the last election. That makes you the anti-democratic tyrant, not Trump.

            1. You’re the one attempting to defend lying about one’s true intentions in order to enact change.

              1. Says Chemjeff the liar.

              2. Yes, I’m defending cabinet members being allowed to lie. Clinton’s cabinet members lied. Bush’s cabinet members lied. Obama’s cabinet members lied. And Trump’s cabinet members lie. Cabinet members lying is insufficient reason to challenge an executive action, because if lying about motivations becomes a valid reason to challenge executive actions in court, we can kiss our democracy goodbye.

  4. The Trump Administration should have been perfectly honest with its reasoning. We put the question on the census to suppress the count in area with Democratic majorities. The Supreme Court has shown a reluctance to get involved in political squabbles like gerrymandering. It is just as likely they would have accepted a political argue here.

  5. He told the truth 100%. Our voting rights are being infringed by counting illegals for representation and by issuing them DLs in Cali that can result in illegal voting. They have stolen house seats, electoral votes, and may very well have decided elections and we have no way of knowing without asking for citizenship. When we explain that we need to ask for citizenship, partisans like you say we’re lying and then point to limited evidence of voter fraud while denying us the primary method of collecting said evidence.

    1. Do you have any statistics on how many undocumented immigrants are voting in Federal elections in California?

      I will state up front that I think the number is probably greater than zero. But I would be surprised if it is a very large number.

      But hey, if you can provide some actual EVIDENCE beyond mere anecdotes, that would help to bolster your case.

      1. How do you wager I could possibly have statistics when there’s no data gathering allowed? The only figure I have that isn’t some sort of estimate is that about 1,000,000 people met the eligibility requirements for getting a Cali DL without proof of legal residence and got licenses.

        I give most people the benefit of the doubt because I too am concerned about a ‘papers, please’ society, but at least for voting, we really should know. Even if the Constitution explicitly said to count non-citizens for representation, that’s rife with conflicts of interest and would need to be addressed sooner or later.

    2. Our rights are not being infringed. The Constitution calls only for a count of persons. It is clear that our founders saw representation was needed beyond the number of eligible voters. They recognized that non voters would need to be considered. They likely saw it as the responsibility of the eligible to pick a person committed represent the interest of all people within the voting district.

      1. A representation of people who had entered into the US in violation of US law was clearly not intended; such persons are not usually considered to be a person “present” in the US in a legal sense. The fact that the Census has been interpreted in that way is an error of law that should be corrected.

      2. And yet they also saw it necessary to restrict the quantity of representation for slaves because they understood the connection between population, representation and influence.

        We need a zero-fifths compromise for all non-citizens. Assigning any representation is bad enough. The only reason slaves were given three fifths is because Southern states never would have ratified the Constitution otherwise. The Northern position (and that of most founding fathers) was implicit from this compromise; non-citizens should not be counted in representation.

        1. This is very true.

          Unfortunately, the 14A changed the Census count to only exclude Indians, not taxed.

          The only solution is to deport as many illegals as we can find before the Census count is complete, ask about citizenship on the Census, and send Census takers back out to non-citizens to make sure that they are still there before the due date for the Census results. If not, exclude those illegals.

          In the end, the Lefties trying to save the Democrat Party with Census 2020 is going to be a failure. Even with illegals being counted in CA and NY, Blue states will be giving up numerous House seats to Red States, like Texas and Georgia. Based on the recent SCOTUS decision, Red states will be able to gerrymander House districts like Democrats do and Red states will become more politically powerful in 2020.

          1. “The only solution is to deport as many illegals as we can find before the Census count is complete”

            Well, you could kill them too. That’s another solution which has the advantage of being final. Probably almost as good a deterrence as stealing their kids and caging’em too……..

  6. Let’s just call a spade a spade, shall we?

    The Trumpists want the citizenship question on the Census not because they really care about how many people are citizens or not, but because they want to suppress the number of undocumented immigrants who are counted.

    Furthermore a small subset of them wouldn’t mind if Census data is cross-referenced with ICE data, or State Department data, to determine which non-citizens who foolishly answers the Census are undocumented, and therefore use the Census data as a law enforcement tool.

    1. “The Trumpists want the citizenship question on the Census not because they really care about how many people are citizens or not, but because they want to suppress the number of undocumented immigrants who are counted.”

      But why does that invalidate their right to do it?

    2. If only adding a question to the Census would have the effect of getting illegals to stop responding. Unfortunately, it won’t.

      What it will do is provide data based on which we can have a rational debate over whether we want non-citizens to count in the allocation of Congressional districts. But a rational debate and data is what you fear, isn’t it.

      1. We can have whatever rational debate you want about whether non-citizens should be counted in the Census without you or the lickspittles in DC trying to weaponize the Census.

        These rationalizations about why the citizenship question ought to appear on the Census are just so amusing. In the current discussion, we’ve had:

        “Oh it’s just information that the government ought to have.”
        “Oh it’s so we can have a ‘rational conversation’ on proper representation in Congress.”
        “Oh it’s to help with enforcement of the VRA”.
        “Oh it’s because we need a denominator for purposes of the Fourteenth Amendment.”

        When the truth is simply this: The current creeps in charge want the citizenship question on the Census BOTH to distort the count to favor Team Red by suppressing Hispanic responses, AND so that they can use the data for law enforcement purposes, to deport the illegals. Period, end of story.

        That is why Wilbur Ross had to lie about his true motivation, because it would have created an absolute shitshow if he had been actually honest from the start.

        And that is why so many people even in this discussion are inventing these motte-and-bailey arguments, because the “bailey” is too gauche even for Reason comment boards.

        1. If your illegal alien imaginary friends are too cowardly to answer a question that doesn’t even implicate them in the wrongdoing that they are guilty of, they don’t have to answer the census.
          But I realize you, like all progressives, cannot tolerate the idea of personal responsibility

        2. You aren’t listening: no rationalization is needed for the question. Trump can ask it for any reason or no reason at all.

          It is you who clings to the delusion that executive action needs a rationalization that you or the courts believe in.

  7. This has an easy solution. All should be asked “Of what country do you claim citizenship?”

    This is perfectly in line with the law that forbids counting people subject to other countries.

  8. Oh, and let’s look forward to 2030, when President Kamala Harris decides to add a question to the Census of whether there are guns in the household or not. She will of course claim “oh it’s for public health purposes” but everyone will know it’s a bald-faced lie. I can expect that all of the commenters here who are claiming some unchallengeable authority by the executive to conduct the Census however he/she wishes will be totally okay with that turn of events. Right? Right? They wouldn’t even THINK about asking a court to intervene to stop this question. Oh no no no, that would be totally wrong.

    1. To answer your first question, yes, I don’t want a single undocumented person counted, even if they’re legally present. I don’t believe they’re entitled to representation, not because I have an issue with them personally, but because of the incentive it provides for politicians to import politically favorable groups without assigning them full representation and the vote. They’re not literally in chains, but these people are political slaves. It’s no different than Southerners using slaves to gain more seats and influence even though no black person, if they could have voted, would have ever endorsed those slaveholders’ policies.

      As for your slippery slope about asking other questions on the Census, asking for gun ownership is political. Asking for citizenship is not. The former is something that Americans disagree on; the latter is the introduction of non-Americans with the intent of replacing existing Americans in order to secure a demographic majority and eternal political power.

      1. “To answer your first question, yes, I don’t want a single undocumented person counted, even if they’re legally present.”

        I’m not sure it’s possible to be here legally without being documented…….

        1. Born in the USA without parents seeking to get a birth certificate?

    2. Taken at her word, by the time of the 2030 census President Harris would have already confiscated every gun in the country by executive fiat. It’s a silly question.

      And people filling out the census form would get around it by lying. Just like, you know, undocumented immigrants could get around the citizenship question were it to show up on the 2020 form.

    3. If that tyrant is elected in 2020 and still President in 2030 there will be no need to ask that question. Most of the guns will be readily visible on the streets.

    4. If Kamala Harris gets elected president, I don’t care, I will have given up my US citizenship and left the country so that you can enjoy your bread lines, secret police, and race riots without my interference.

      1. Promise?

  9. SCOTUS allows parallel construction for law enforcement.

    How is this different?

    https://en.wikipedia.org/wiki/Herring_v._United_States

    “Eight years later, a 2017 paper in the Journal of Criminal Law & Criminology concluded that “Herring invited evidence laundering by police and laid the groundwork for judicial approval of this practice”, based on a case law examination of how state courts and lower federal courts had applied the Supreme Court decision since 2009.[14]”

  10. “In order to permit meaningful judicial review, an agency must ‘disclose the basis’ of its action,” the Court said. “The reasoned explanation requirement of administrative law…is meant to ensure that agencies offer genuine justifications for important decisions, reasons that can be scrutinized by courts and the interested public.”

    This, of course, is why congresscreatures are required to set forth the Constitutional basis of every bill proposed before said bill can be acted upon.

  11. “The commerce secretary could easily have reinstated the citizenship question if he had been less transparently dishonest.”

    And this is so obviously the case that I have to wonder why he didn’t just give an honest reason for reinstating the question. Was he given bad legal advice?

    1. The “honest reason” is that it makes sense to know how many non-citizens there are in the country and are being counted for the allocation of Congressional districts. That way, we can have a political debate of whether we want this absurdity to continue. Why didn’t he say that? Because the court would not have accepted it either.

      1. Well, the lower court wouldn’t have, but, realistically, the lower court wasn’t actually going to accept any reason, no matter how valid. So they should have been looking to what the Supreme court would think, from the start.

    2. Because the “honest reason” was for Team Red to try to weaponize the Census as a political tool to suppress Team Blue-favorable constituencies. Which is too gauche of a reason to be spoken aloud.

      1. Chemjeff wants Team Blue to weaponize the Census to give Blue state more power in Washington based on illegal aliens.

        Luckily, the Constitution slows the Lefty roll.

      2. “Because the “honest reason” was for Team Red to try to weaponize the Census as a political tool to suppress Team Blue-favorable constituencies.”

        Oooh. Breaking news!! An American political party is trying to manipulate the rules to give it an advantage!

        In other news, my dog chased some squirrels and meteorologists are predicting that it will be hot in Arizona this August……

      3. What’s “too gauche” about it? That’s a perfectly good reason too.

  12. So the Supreme Court now knows whats in the hearts and minds of people. Even if a person has one reason to something but also has other reason to do something not telling all of the reasons even when all reasons are legal there is no reason for the court to stop it. this makes the court an activist court.

    1. “So the Supreme Court now knows whats in the hearts and minds of people.”

      No, they don’t. They admit they don’t. That’s why they expect people arguing before them to make straightforward, honest arguments. Making arguments that can easily be disproven harms the credibility of the entity making that argument.

  13. So now the Supremes have moved beyond being Constitutional ninjas into mind reading? Should Court decisions really be based on guessing someone’s intent, rather than on the facts of the case?

  14. Courts shouldn’t be in the business of evaluating what the person was thinking when they made the decision. The only question is, does the person have the authority to make this decision? So does the Commerce Secretary have the authority to put a citizenship on the census? There is nothing suggesting he doesn’t. Instead we have a set of judges who basically want to resist what the administration wants to accomplish.

  15. […] of basic policy has undermined the president’s goals. As Reason‘s Jacob Sullum has explained on several occasions, Commerce Secretary Wilbur Ross is largely to blame for Chief Justice […]

  16. […] would have sufficed. Instead Ross made the decision for unstated reasons, then spent months scrambling for a rationale before settling on the Voting Rights Act cover story that the Court called a […]

  17. […] would have sufficed. Instead Ross made the decision for unstated reasons, then spent months scrambling for a rationale before settling on the Voting Rights Act cover story that the Court called a […]

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