California has had a lot of success suing the Trump administration. The state has been able to halt or delay policies on everything from sanctuary cities to the travel ban.
But its chances in this latest lawsuit could be much more slim. California announced Monday night that it would sue the administration to keep a question about citizenship off the 2020 census.
The worry: Civil rights advocates, some census experts and Democrats fear that adding this question for the first time since the 1950s would disincentivize immigrants to respond. That means they wouldn't be counted in their communities by the government, which could drastically shrink political representation in urban, more liberal areas and cost states with high numbers of immigrants billions in federal funding.
California is arguing that the Trump administration is violating the Constitution, which says the government has an obligation to count all people in its census, as the lawsuit filed by California Attorney General Xavier Becerra points out.
Some legal experts say the government may still be able to change the census in ways that make it more difficult to count everyone, without violating the Constitution. There's a difference in the court of law between making it harder to count people and refusing to count people.
“If the government says: 'We are not going to count immigrants,' that would be a textbook violation,” said Stephen Vladeck, a law professor at the University of Texas, which is one of the states that will be most affected by the new citizenship question. “But what the government is doing here is more subtle than that.” And that's probably what the government will argue here, that they have the right to change the census.
But there are more ways than one to win a case. California is also suing the Trump administration on procedural grounds, arguing that the government just made a major policy change without going through the formal rulemaking process: consulting the public, holding hearings, etc. This argument could be crucial for convincing a federal judge to hear the case.
“This has such huge policy implications, I assume they can make that argument,” University of Richmond law professor Carl Tobias said. “And it may prevail.”
Here, the Trump administration will try to argue the state doesn't have standing, but California, a high-immigrant state, could argue it will lose an entire congressional district and billions of dollars of federal funding as a result of the addition of this one question.
At least, that strategy may prevail in convincing the courts that there is enough reason to pause the citizenship census question while they debate the constitutional issue." They could tie this up in the courts for a while,” Tobias said. This could even go all the way to the Supreme Court.
This is actually the strategy California and New York recently used to get courts to indefinitely pause a deadline Trump ordered to deport young undocumented immigrants known as “dreamers.” The cases are winding their way through federal courts, and for now hundreds of thousands of dreamers can remain in the country without fear of deportation.
That's why this California lawsuit against the census is so important. California doesn't even have to win the case to win the battle. The state just has to tie it up in the courts long enough to make it difficult for the Commerce Department to put the question on the 2020 census. And by 2020, Trump will be focused on other things, like his reelection.