[EL] Why not just pick a pretext from the EO?

Fri Jul 12 07:55:19 PDT 2019

Or they could have changed the executive order to tailor it to legitimate interests in getting more fine/grained data.  

Sent from my iPhone

> On Jul 12, 2019, at 3:38 AM, Levitt, Justin <justin.levitt at lls.edu> wrote:
> 
> To Marty’s question about why Commerce didn’t just originally pick a pretext from the array in the EO: I think the TL;DR answer is that the EO answers are only surface-level plausible for what they wanted to do.  Either they don’t actually explain the need for putting the question on the enumeration, or they don’t fit the pre-existing OMB preference for uses reflecting strong federal enforcement needs.
>  
> And now the overly long version:
>  
> Obviously, I have no insight into Commerce’s actual decision-making process beyond what’s been revealed in litigation.  And so what follows represents the attempt to reverse-engineer a rational search for a purpose to put forward.  YMMV for whether you think this resembles any plausible consideration in the decision making process that actually went on, in whole or in part. 
>  
> 1.       Despite the assertions in today’s press conference, the Secretary’s March 2018 decision was not a decision for the Census Bureau to start collecting citizenship information from the public.  The census’s American Community Survey already collects citizenship information from the public on a rolling (and hence regularly updated) and fairly detailed basis (country of birth, year of entry).  Instead, the March 2018 decision was a decision to collect information on citizenship (alone) from the public on the decennial household-to-household 100% enumeration form.  
> 
> That sort of collection risks fomenting inaccuracy (inaccuracy quantified by Census Bureau experts in what they explicitly designated as an exceptionally conservative estimate, and undersold by SCOTUS as a predictive figure, without that same caveat).  The size of the inaccuracy was disputed, but not the fact of the inaccuracy.  So the decision to forge ahead despite that inaccuracy required at least some articulable benefit from asking for the information on the enumeration, over and above either administrative records or surveys.  The ostensible benefit they settled on was the illusion of block-by-block precision purportedly needed for Section 2.  
> 
> Beyond redistricting, none of the other uses in pp. 5-8 of the Executive Order (overall national immigration policy, overall national benefits expenditures, various broad legislative purposes concerning the undocumented population) seem to offer a plausible meaningful incremental benefit (over surveys or administrative records) for household-by-household collection of the one incremental citizenship question sufficient to justify the lapse in accuracy.  That is, the other uses beyond redistricting in the EO are pitched at state or national estimates (where the ACS margins of error are really quite small) rather than block-level estimates, and often require information about year of entry, country of origin, or immigration status that the single citizenship question wasn’t designed to get.
> 
> Or more simply: except for redistricting, these other applications might explain why the Administration would want ACS data it’s already got.  But they don’t really purport to explain why they’d need one extra household-by-household question on citizenship.  The VRA pretext offers an excuse for block-level data on citizenship (without the extra questions on year of entry or status or the like).
> 
> 2.       I don’t know offhand the process for reviewing content on the household-to-household enumeration, but there’s a rather detailed OMB-fostered process for reviewing content on the ACS.  It privileges information to be used by federal agencies, and particularly privileges with the following priority: 1) data explicitly required by statute to be gleaned from the census, 2) data required by statute or case law and naturally derived from the census, and only thereafter 3) data useful for programmatic planning.  Data without mandatory or required uses by federal agencies, and only programmatic uses at geographic levels larger than counties, were lowest priority, and essentially flagged for likely deletion from the ACS.  And would have been tricky to sell as prime candidates for elevation to the household-to-household enumeration.
> 
> This means that in the existing OMB procedure, the gold standard (at least for ACS content) was information needed by a federal agency in small levels of geography in order to perform a function specifically required by statute or caselaw.  (I’m assuming that the process for enumeration content – to the extent there was a process -- was at least as restrictive.)  
> 
> That explains why Commerce first went shopping to federal agencies – DOJ, DHS, DOJ again – for some requested justification, rather than just saying “hey, we’re adding the question because this stuff might be useful for someone.”  The VRA pretext met that threshold of caselaw requirement for data in small levels of geography needed for federal agency enforcement.
> 
> None of the other uses in pp. 5-8 of the EO do the same thing.  The first few have to do with changing laws and appropriations and broad national policies, but not enforcing existing statutes at the local level.  The rationales in the EO seem pitched primarily  at helping Congress pass better laws.  But if Congress needs information to inform its policymaking, Congress can add whatever information it wishes (which may well be why the OMB process privileges data to assist executive functions).   And the redistricting rationale in the EO isn’t a federal agency rationale either – it’s entirely dependent on the cited interest of “some State officials.”
>  
> I’m not suggesting that there aren’t other hypothetical pretexts that would both 1) fit the preference for data required for federal agencies to do their existing jobs and 2) make the case for a single question on citizenship collected at the block level, yielding information ostensibly more suitable than the stuff already collected on the ACS.  But in that respect, the VRA nonsense did deliver a two-fer.  (To be clear, it doesn’t hold up either.  But on these two axes, it might hold up a bit better than the EO alternatives.)
>  
> Justin
>  
> From: Law-election <law-election-bounces at department-lists.uci.edu> On Behalf Of Marty Lederman
> Sent: Thursday, July 11, 2019 7:25 PM
> To: Rick Hasen <rhasen at law.uci.edu>
> Cc: Election Law Listserv <law-election at uci.edu>
> Subject: Re: [EL] The Trump (Second) Cave on the Citizenship Question is a Double Victory for the Rule of Law
>  
> Here's the great mystery (unless I'm overlooking something):  Why didn't Commerce in the first instance, back in early 2018, cite the purposes articulated at pp. 5-8 of the Executive Order (or at least all of them other than the redistricting rationale), instead of the patently bullshit "to help CRT enforce Section 2 of the Voting Rights Act" fiction, as justifications for adding the question to the census--something the Court probably would have upheld?
>  
> On Thu, Jul 11, 2019 at 6:15 PM Rick Hasen <rhasen at law.uci.edu> wrote:
> The Trump (Second) Cave on the Citizenship Question is a Double Victory for the Rule of Law
> Posted on July 11, 2019 3:08 pm by Rick Hasen
> President Trump’s Speech this afternoon in which he said that the Administration would give up on efforts to add a citizenship question  to the census is a victory for the rule of law. Many people were predicting that Trump would use an Executive Order in an effort to force people in the Census Bureau to ignore multiple court orders which barred the inclusion of the question. I had been saying to wait and see, and fortunately, the Administration did not provoke a constitutional crisis by ignoring the judiciary and judicial review.
> 
> This is the second victory for the rule of law. The first was that the Supreme Court, likely thanks to the Hofeller files, refused to go along with the charade that the government wanted to add the census question to help Hispanic voters in Voting Rights Act lawsuits. In fact, it was quite the opposite: it was an attempt to maximize, in Hofeller’s terms, white Republican voting power at the expense of Hispanics and Democrats. The pretext was too much for even Chief Justice Roberts to handle.
> Sure it is not all good news. Four Justices were willing to go along with this charade. Roberts’ majority opinion created an easy path for inclusion of the citizenship question in future decades, so long as the government learns to lie better. The government will still collect citizenship data to give Republican states a way to draw districts with equal numbers of voter eligible citizens, rather than all persons, thereby diminishing Hispanic (and Democratic) voting power. (The question of whether that is permissible will have to be decided by the Supreme Court, where the odds are good that drawing such discriminatory district would be allowed.) And attorney general William Barr further lied when he said that the Administration would have won its lawsuits, if only they had more time. (Not only would they have had a difficult time manufacturing a new pretext; the were amateurs in trying to fix things, and had no good explanation for why they could extend the deadline for printing after telling the Supreme Court it had to take the case on an expedited basis and skip the Court of Appeals given the time crunch.)
> So it is not all good news. But it is good news for the census (where the real work of getting people to answer the survey is just beginning, given all of the dirt Trump has thrown up in the air, and all the intimidation of non-citizens to participate).
> 
> And it is good news for the rule of law. Even the Trump Administration listened to the courts. We shouldn’t lose sight of that significant victory.
> 
> <image001.png>
> Posted in census litigation, Supreme Court
>  
>  
> -- 
> Rick Hasen
> Chancellor's Professor of Law and Political Science
> UC Irvine School of Law
> 401 E. Peltason Dr., Suite 1000
> Irvine, CA 92697-8000
> 949.824.3072 - office
> rhasen at law.uci.edu
> http://www.law.uci.edu/faculty/full-time/hasen/
> http://electionlawblog.org
> <image004.png>
> _______________________________________________
> Law-election mailing list
> Law-election at department-lists.uci.edu
> https://department-lists.uci.edu/mailman/listinfo/law-election
> 
>  
> --
> Marty Lederman
> Georgetown University Law Center
> 600 New Jersey Avenue, NW
> Washington, DC 20001
> 202-662-9937
>  
> _______________________________________________
> Law-election mailing list
> Law-election at department-lists.uci.edu
> https://department-lists.uci.edu/mailman/listinfo/law-election
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20190712/a68a0306/attachment.html>