Earlier this month, we learned that yet another judge had blocked plans to add a citizenship question to the 2020 census. We also found out at the same time that the Supreme Court was going to entertain the question quickly and deliver a ruling, likely at the end of this session in June. At the time, I pointed out some of the problems with arguments against including the question, particularly the fact that it’s been asked of tens of millions of Americans every ten years since before most of you were born.

This week the Supremes heard oral arguments in the case and the general consensus seems to be that we’re heading for yet another 5-4 split. The conservative justices on the court sounded very much as if they were going to allow it while the liberals were opposed to it. At Outside the Beltway, Doug Mataconis offers details from both sides of the debate but doesn’t exactly answer the real, underlying questions. First, is a citizenship question constitutional? And if it is, what rationale is there for stopping the government from asking? First, he addresses the constitutional question.

As I have noted before, as a matter of policy there appear to be very few good reasons to put a question regarding citizenship on the census and several reasons for keep keeping it off altogether.

The first argument. of course, is that citizenship has nothing to do with the purpose of the Census itself, which is to count all of the people in the United States and to apportion those people among the states for the purposes of Congressional redistricting. This is established in Article I, Section Two, Clause 3 of the Constitution, which provides for a count of all of the people in the United States, and their apportionment among the states, without regard to whether these people are citizens or legal or illegal residents.

I find this argument less than persuasive for a couple of reasons. It’s true that Article I of the Constitution mentions the census as the source of data to be used in apportioning representatives. (That’s about the only place it’s mentioned, except in the Sixteenth Amendment.) But the Founders didn’t include any instructions about that being the only use for the census. If they had, we wouldn’t be having this debate.

But let’s just assume that we can infer that it’s the sole reason. If your argument, as Doug mentions, is that the census should be limited to a single question about the number of people at each address, then fine. I’ll go along with that. It will save everyone some time. Two people in my house. Done and done. But then why aren’t we screaming about getting rid of the other questions on the short form. (Read them here.) What business is it of the federal government to know whether you rent or own, how old you are, what gender you are, your race or whether or not you’re Hispanic? If all we’re doing is counting bodies to determine congressional representation, shouldn’t all of those questions be “bad” by definition? The information could obviously be abused.

But nobody screams about those questions because the data is useful for all sorts of studies having nothing to do with how many congressmen your state sends to Washington. If you don’t ban those other questions, there’s not much of an argument for banning the citizenship question for constitutional reasons.

Next, Doug gets to the more political question that eats up so much of the news cycle. Would asking the question lead to lower participation?

Specifically, they have argued that asking about citizenship on the census questionnaire is likely to lead Latino families especially to decline to participate in the Census or answer the questions of a Census Taker that may come to their door out of fear that such information will be used against them or members of their family even though Federal Law provides that the answers to Census questions from specific households must remain confidential for at least 70 years. These fears were almost immediately seemingly confirmed when it was announced in the wake of the decision to put the citizenship question on the ballot that it had plans to “cross check” the responses to the citizenship question with data from other agencies.

What this aspect of the issue boils down to is a fear that illegal immigrants (and potentially their legal family members) may not return the forms for fear of being detected, detained and deported. What we’re really talking about is creating policy based on the suspicion that a person who is in the process of breaking one law (being in the country illegally) may then break another law (filling out and returning the form is mandatory under the law) by throwing out their census form. Is this seriously how we’re going to be making policy now? On the basis of not wanting to offend criminals?

Perhaps we should consider asking everyone if they’ve ever used opioid drugs. It could be incredibly useful data to collect as the nation struggles with an epidemic of addiction. But wait… then people might not complete the form because they fear they might be exposed as having purchased drugs illegally. The entire concept is madness.

The last point I’ll make in terms of Doug’s argument is that it ignores the 800-pound gorilla on the debate stage. Let’s assume that asking the citizenship question is “a bad thing” and it shouldn’t be allowed. As I pointed out in the previous article, with the exception of 1960, we’ve been asking the citizenship question to as many as fifty million people every time we do the census. (And yes, that includes 2010 because we swapped out the long form for the American Community Survey that year and it included the citizenship question.) The odds that none of the households receiving those forms included illegal aliens is effectively zero. So why aren’t we in court battling to eliminate the long form and/or the American Community Survey? Those forms ask far more intrusive questions of all sorts, including the citizenship question.

I’ll tell you why. Because nobody cared about it until a change was requested by the administration of the Bad Orange Man. But since he was the one making the latest change, it had to be #RESISTED. This isn’t a question of constitutionality or even accuracy in the census. It’s just more politics.