Heartened by a recent court decision, the editors of the Washington Post comment about a proposed census question on citizenship:
A lot of federal funding is distributed based on states’ total population. So are congressional seats. Adding a citizenship question on a form sent by an administration explicitly hostile to migrants is highly likely to depress response rates among immigrants, even those who have naturalized. This would make urban centers in blue states look less populous and, therefore, less deserving of money and representation.
Instead of continuing to contest the lawsuit, Mr. Ross should eliminate the new question.
This is a thorny issue with multiple strands. Let me try to untangle them.
Although the first census of 1790 asked only the questions necessary to satisfy its constitutional mandate, within a generation of that census in 1820 the census asked about occupation as well. Over the years the census has asked questions about race, place of birth, occupation, and income, just to name a few. Asking these questions has been upheld in the courts, presumably as long as they served a legitimate government interest.
The reach of the federal government is so great these days it’s a bit hard to imagine a question that does not serve a legitimate government interest. The stated interest in this particular case is to get a better handle on the number of eligible voters which sounds like a legitimate government interest to me. This particular question is being challenged on the grounds of animus which raises a troubling question. Does the legitimate exercise of executive power in pursuit of a legitimate government interest become illegitimate by virtue of it also serving a political agenda or through personal animus?
I don’t know the answer to that question but I do find it troubling, since it suggests that the nature of the law depends on who you are. Philosopher-kings are in short supply. In their absence we attempt to craft the law so that it doesn’t matter who enforces them as long as they do enforce them.
We could also limit the harm that could be done by unscrupulous individuals’ exploitation of legitimate laws for illegitimate purposes by limiting the reach of the federal government but that’s just crazy talk.
I’ve not followed the issue, but the 1820 census required a count of the number of foreigners not naturalized, which seems to have continued in some form or other until removed by Obama in 2010. Am I missing something?
Here is the 1820 census:
https://www.census.gov/history/www/through_the_decades/index_of_questions/1820_1.html
On further review, Jefferson proposed the citizenship question in 1800, but the Senate didn’t act on it. That might be the most significant change, in which census policy was legislative as opposed to executive.
Surprising given Jefferson was more restrained in the role of federal government and the Federalists had recently passed a law to allow President Adams to deport foreigners of questionable repute (unstated, but it’s the (Scots-) Irish), who happened to be aligned with Jeffersonian Republicans. He seemed to think the question good for purposes of pure knowledge; that who we are as a people is a matter worthy of study.
The key question is does animus make something that would otherwise be legitimate illegitimate and when?
I’m not a fan of its ok if an Obama or Bush do it, but not a Trump, and I don’t think the SCOTUS is either.
I think it could be ameliorated. For years most forms that ask about “race” sex and so on have an “I don’t want to answer that” option.
Census takers and the forms they use could instruct people that they don’t have to answer every inquiry if they don’t want to, including immigration status. Just add a block for “do not wish to answer.”
“The key question is does animus make something that would otherwise be legitimate illegitimate and when?”
That seemed to be a consideration for Trump’s so-called “Muslim ban.” I tend to land on the side that believes the effect of the policy is more important than purported intent, which is inherently subjective.
How can you not take into account animus? Lots of bad things have been done under the (obvious) guise of good intent. If you know the intent of the people implementing this, then provide an out. Let people not answer. Let the people filling it out if they want to trust those who put in the question.
Steve
For me that says that the law should be written differently. In a government of laws that is how things are done. But I have no problem with Andy’s suggestion.
“How can you not take into account animus?”
I don’t see it as either-or. Intent should be taken into account in some circumstances, but the actual effects of a policy should dominate. As you say, a lot of people try things base on good intentions that turn out to be abject failures. We should not keep doing those things simply because people’s intentions are good. By the same token, we should not automatically reject policy if the effects are good or legitimate but the intentions are “bad.”
Also, keep in mind intentions are inferred and subjective – another reason intent should be much less important than the actual effects.
I think that I see the question very differently than steve does. I think that you separate the creation of the laws from their enforcement and adjudication. The laws are crafted in such a way that the motives of law enforcement are irrelevant to their determination of probable cause that a law has been broken. The motives of the accused matter but they matter not to law enforcement but to adjudication and, if guilt is established, to punishment.
The example I would give is speeding. The town council passes a law saying that the speed limit within the city limits is 30 mph. When the town constable gives a Northerner passing through town a ticket for speeding, it doesn’t matter that the constable has a well-known prejudice against Northerners. The judge may decide that a fine is enough and jail time won’t be necessary because the constable enforced the law selectively. It doesn’t make a difference in guilt or innocence. Speeding is speeding. The Northerner was clocked at 45 mph.
Here, the law appears to be that the Secretary of Commerce is supposed to prepare questionnaires and “shall determine the inquiries, and the number, form, and subdivisions thereof, for the statistics, surveys, and censuses provided for in this title.” (13 U.S.C. Sec. 5) That is, the authority was delegated to an official in the executive branch, subject to continuing oversight and review by the Senate.
In addition, two years before the next census date, the Secretary a report containing the Secretary’s determination of the questions
proposed to be included in such census. (Sec. 141(f)(2)) Link to Secretary’s Memorandum Clearly, the intent here is to require the Secretary to make the questions available in time for Congress to provide oversight or pass a law restricting his authority.
It sounds like the SCOTUS is going to be looking closer at delegation arrangements. I’m guessing Dave doesn’t like the one. It’s more of a strong mayoral system, with the city safety officer setting the speed limits, and the city police enforcing the law; and all the alderman get to publicly berate the mayor for whatever bad that happens due to either (plus power of the purse).
How about a small tax to vote? It costs a lot to pay for those voting machines. The tax would help cover the costs. Seems reasonable until you realize that the people writing such a law had other intentions, obvious when the law was written. In this case we also have the stated intent, but we also have obvious ways it can be abused, plus the Animus to suggest it is likely.
Steve
You mean other than that they were declared unconstitutional by a unanimous decision of the Supreme Court in Harman v. Forssenius a half century ago?
Yup, but at the time they were written, they supposedly made sense, unless you looked at who wrote them and looked at the obvious consequences. I think that, hope that, we can do better than just accept the stated intent of obviously hostile people who have an agenda.
Steve