By Hannah M. Alarian (University of Virginia)
The decennial census – one of the largest undertakings of the United States government – is generally not on the mind of the average American. This will likely change, however, as new proposed questions of citizenship and immigration catapult the 2020 census to renewed political significance.
Posted late Monday night on the Commerce website, the United States 2020 Census will include a question assessing respondents’ citizenship status. This change comes from a December request from the United States Department of Justice to “reinstate on the 2020 Census questionnaire a question regarding citizenship”. This request may have surprised few, as rumours of this desired change saturated the early days of the Trump presidency, but the formal request so near to the ‘dress rehearsal’ leaves many wondering if this request can be appropriately and ethically implemented.
Proposed Census Change
The United States Census is mandated by the constitution to be conducted every ten years with the overarching goal “to count everyone once, and only once, in the right place”. The census serves a variety of essential purposes for governance, including apportioning representatives, drawing congressional districts, enforcing voting rights, and providing population benchmarks.
Not since 1960, however, has the census asked every household about member’s citizenship status. A ‘long-form’ census, sent to roughly one out of every six households, recorded citizenship data again starting in 1970, yet this form was phased out in favour of a short-form 2010 Census. This does not mean, however, the United States government did not collect information about migrants residing within its borders. The American Community Survey (ACS) replaced this ‘long-form’ census, sampling approximately one out of every ten of American households every five years. The ACS collects information on citizenship status, place of birth, and year of immigration. Additionally, those who indicate possessing American citizenship are asked to state the circumstances of such status (e.g., jus soli, birth abroad to US citizen parents, naturalisation).
Despite this collection of data by the ACS, there have been several recent attempts at reinstating and introducing new questions of citizenship and migration on the 2020 Census. In a September House Committee on Rules debate, former Representative Clay Higgins introduced an amendment to prohibit funding the 2020 Census if it failed to adopt mandatory citizenship and migration questions. While not nearly as punitive, Representative Steve King introduced the Census Accuracy Act of 2017, proposing all future Census questionnaires require individuals to report their legal status and identify the source of their status (e.g., federal program, law).
Why the controversy?
Those who support including questions of citizenship and immigration argue that these items will help researchers and policymakers understand immigrant experiences, address the unique challenges they face, and – in the case of the request by the Department of Justice – aid in the enforcement of the Voting Rights Act (VRA) to protect against racial discrimination in voting. And while the ACS collects status information every five years, the supporters claim its current rigor and breadth cannot adequately address the necessary concerns of protecting the voting rights of migrant and ethnic minority communities.
Despite these arguments, the decision to collect citizen and legal status data with the 2020 census could have very clear political ramifications. Specifically, one of the core tasks of the US census is to apportion seats to the House of Representatives based on population size. While the apportionment is based on the total population and not the total voter eligible population, the formal letter requests the Bureau to release data “at the same time as it releases the other redistricting data”. And while the Supreme Court upheld a Texas district court ruling on appropriation on the basis of total population in 2016, it may be possible that we see another case arguing this time for an apportionment based not on vote eligibility but on citizenship status. Additionally, the constitutional rights protected under the 5th amendment may be violated with a mandatory citizenship status Census item. In other words, requiring a response to a question of legal status may invoke self-incrimination and thus render the question itself unconstitutional.
Even if the Census only asks about an individual’s citizenship and not legal status, many respondents are concerned with the privacy and security of their collected Census data. Several Bureau studies find an unprecedented level of confidentiality and data sharing concerns for immigrant and minority communities in particular. In an amicus curiae brief, four former census directors stated questions of citizenship status would “exacerbate privacy concerns and lead to inaccurate responses from non-citizens,” ultimately establishing “a lower response rate to the Census in general.” These reduced response rates will hinder accuracy overall and increase the already strained Census budget. In the 2010 Census alone, personal enumerators went door-to-door to nearly 47 million non-responsive households, which in turn cost American taxpayers nearly $13 billion.
Recent Census Bureau research finds willingness to respond to the ACS increases when respondents are aware of how their data will be used by government agencies. Yet as concerns continue to rise about the involvement of Immigration and Customs Enforcement (ICE), migrant communities may be less inclined to respond to the 2020 Census openly and honestly. There is also historical precedent, including the location sharing of Arab-Americans residences to the Department of Homeland Security and the Bureau’s role in the internment of Japanese-Americans during the Second World War. Even if the stated VRA rationale is publicised, recent leaked memo drafts depicting immigrants as economic burdens and encouraging deportation for those who use federal public benefits likely would counteract this messaging. Ultimately, migrant community responses are likely to continue to plummet with the addition of required status questions.
Whether the United States implements this proposed change in the 2020 Census may ultimately reside with the courts. The Lawyers’ Committee for Civil Rights Under Law immediately condemned the addition and Californian Attorney General Xavier Becerra called the deemed the move ‘illegal’ mere hours before the Bureau’s announcement. Even if the United States abstains from including new measures on the Census, President Trump’s renewed interest in such questions makes it clear this debate over citizenship and legal status will not soon fade away.