The facts on Trump’s order on counting citizens — and what to expect now

President Trump’s executive order directing federal agencies to provide citizenship information to Commerce Secretary Wilbur Ross had not been written when the president and Attorney General William Barr spoke in the Rose Garden yesterday. That left the field wide open for misinformation and disinformation.

Secretary Ross’s much maligned memorandum of March 26, 2018, explaining his reasons for asking a citizenship question on the 2020 census contains so much detail that it obscures some significant information. It describes a sinuous struggle between Ross and “the experts” in the Census Bureau. Attempting to dissuade Ross, the resisters inadvertently made him aware that he could get access to administrative records concerning citizenship from other federal agencies. 

Ross, therefore, combined their proposal to use administrative records with the citizenship question. Had Ross not proposed the citizenship question, he likely never would have known about the availability of these administrative records.

Those administrative records have become the foundation for the president’s fallback position.

Without the executive order, Ross would have had great difficulty getting the administrative records from some federal agencies. Even in ordinary times, federal agencies are notoriously uncooperative with each other. Trump’s order will prevent resisters in other federal agencies from withholding the relevant administrative records.

The citizenship question itself will not be on the 2020 census, but the information sought through a citizenship question will be available through administrative records to supplement the census.

You might think that, because the president will now follow the course advocated by the resisters in the Census Bureau, the litigation over the census would end — at least for now.  After all, Ross has been faulted for not following the proposal of Census Bureau “experts.”

The reason Ross thought that using administrative records was inadequate is that, as of March 2018, that information was incomplete. Ross’s memorandum noted that the administrative records were available for 88 percent of the population. Ross’s point has been that, in order to get the most accurate count, it is necessary to supplement the administrative records with the answers to a citizenship question.

You can expect that those who have been arguing that Ross should have relied simply on the administrative records now will use Ross’s memorandum to argue that, alone, the administrative records are inadequate.

The president’s executive order is designed to preclude that argument. It orders all agencies promptly to provide maximum assistance to the Department of Commerce, to the extent consistent with law, “in determining the number of citizens, non-citizens, and illegal aliens in the country.” In particular, the order is directed to the departments of Homeland Security, State and Health and Human Services (HHS), as well as the Social Security Administration.

The goal set out by the order is to have administrative records that will identify the citizenship status for 100 percent of the population.

The executive order cites a 2018 Yale University study estimating the illegal alien population in the U.S. at between 16.2 million and 29.5 million. Previously and still, however, media outlets routinely state the estimated number at 11 million or 12 million. The uncertainty as to whether the illegal alien population has been grossly underestimated provides more than sufficient justification for striving for an accurate count of citizens and non-citizens. 

If more is needed, however, the executive order particularizes legitimate reasons for an accurate count of citizens and aliens: immigration policy reform, the costs associated with illegal entry, protection of benefit programs restricted to citizens, and reapportionment of state legislative districts.

In the end, this fiasco discredits “the experts” in the Census Bureau. Ross’s memorandum indirectly indicates as much. Ross, however, is too gentlemanly to be as blunt as his boss.

Ross found that administrative records demonstrated that 28-30 percent of the answers to the citizenship question on the American Community Survey (ACS) were false. Prior to this use of administrative records, “the experts” at the Census Bureau had posited a much lower false-response rate. Applying their erroneous assumption to the ACS, which samples only 3.2 million people, “the experts” in the Census Bureau estimated in 2012 that there were 11.6 million illegal aliens in the country.

Based on the more accurate false-answer rate of 28-30 percent, the number of illegals in the country is closer to 25 million, which is consistent with the Yale study.

Both Congress and the Supreme Court barred the Census Bureau from using sampling for congressional reapportionment. Both have rightly rejected the claim by “the experts” that sampling methods are as accurate as an actual count. Increased use of administrative records will provide a count of citizens and aliens, and a more accurate count overall.

John S. Baker Jr. is professor emeritus, Paul M. Hebert Law Center, Louisiana State University, and chairman of Our Citizenship Counts, a group of legal scholars and community partners. He has been a consultant to USAID, USIA (now part of the State Department), the Justice Department, the U.S. Senate Judiciary Subcommittee on Separation of Powers, and the White House Office of Planning. Follow him on Twitter @JohnSBakerPHD.