public-policy article

Federal Judge Strikes Citizenship Question from 2020 Census

January 17, 2019

Since the Census Bureau announced the inclusion of a citizenship question on the 2020 Census, the National Assembly has called for its removal. Adding the question would lead to a significant undercount and undermine the apportionment of congressional seats in some of the most populous states and urban areas, many of which have large immigrant populations.

Last June, multiple coalitions of immigrant rights advocates and state attorney generals filed several lawsuits challenging Department of Commerce’s addition of the question. The suits claim that Secretary Wilbur Ross’s decision to include the citizenship question violated the federal Administrative Procedures Act (APA). Six of the cases were consolidated and went to trial in November. On Tuesday, the trial court issued its ruling, vacating Secretary Ross’s decision to add the citizenship question, thereby preventing the Department of Commerce from including it on the census questionnaire, pending appeal.

According to U.S. District Court Judge Jesse Furman, under the APA, a federal agency’s action is unlawful if it is “arbitrary” or “capricious.” This means an agency’s decision will be set aside if it “failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence, . . . or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.” Judge Furman found that Secretary Ross’s actions met this standard. By ignoring the Census Bureau’s own evidence that including the citizenship question would depress response rates, Secretary Ross showed that “the rationale he provided for his decision was not his real rationale.”

The Bureau’s research found that adding a citizenship question would likely lead to a 5.1% decrease in the response rate among households with non-citizens. The Bureau also explained that there are other ways to obtain the citizenship information requested without adding the question to the Census form. Instead, according to the court, Secretary Ross had already made the decision to include the question “well before” he received the Department of Justice’s (DOJ) letter requesting the citizenship question as a means to better enforce the Voting Rights Act. Further, Judge Furman noted that Census officials even tried to “shop around” to different agencies with the hope of prompting one to request the question. The court, therefore, found that the DOJ letter was essentially pretense for an ulterior motivation and required the Census Bureau to remove the citizenship question.

With the question off of the census form, at least for now, the Department of Commerce will likely appeal to the U.S. Court of Appeals for the Second Circuit. If that decision is then appealed to the Supreme Court, the Court would need to decide whether to hear the case and issue a ruling before the June 20 deadline to finalize the census questionnaire, otherwise the result in the lower courts will stand.

Because the outcome and timeline of the lawsuit is unclear, the coalition leading the litigation is urging advocates to ask Congress to remove the question through legislation. For more information about how your organization can get involved please email