Attorney: Ruckus over citizenship question really about Trump

Monday, December 17, 2018
J.M. Phelps (

census workerA U.S. census analyst and experienced attorney questions whether President Donald Trump is being treated fairly on an issue concerning a citizenship question for the 2020 census.

As a first of its kind, a field test for the 2020 census form will be administered to thousands of U.S. households next year – and it will include this question: "Is this person a citizen of the United States?" As OneNewsNow reported earlier, it's a question that has not been void of controversy.

However, Justin Torres suggests the ploy to contest the question is much ado about nothing. The D.C.-based attorney at Schaerr | Jaffe LLP explains to OneNewsNow that, in fact, the "citizenship question has been asked in one form or another for a long time," including the 19th century, and "every census through the 20th century – up through 1950."

The question has also been asked every year for at least the past 15 years in the American Community Survey, according to Torres, who describes it as "a survey that the Census Bureau sends out to a sampling of American households to get demographic and other data from them."


While the attorney agrees there have always been accusations about the inaccuracy of responses to a citizenship question, he points out there is "a fairly long vetted history of asking this question and no evidence that has been brought forward, besides speculation, that people are going to refuse to answer the question – or answer it incorrectly."

"The minute you get beyond a simple counting of noses and you start asking for data," Torres explains, "there is no fail-proof method of ensuring that the data is accurate." Consequently, the census analyst says, results are compared to other forms of data that are available, including Social Security registrations, veterans' records, and "things like that which help determine whether we have what seems like a reasonable answer here or not."

Addressing what Torres describes as a "broader phenomenon" is the use of administrative law.

"[That's] the law that deals with [government] agencies," he says, pointing specifically to "the judicial review of federal and state agency action to determine if there's a reasonable non-arbitrary process that [produces] agency decisions."

"One of the fundamental principles of administrative law," Torres explains, "is that courts will defer to the agency action when there is a reasoned explanation for that action." This does not mean a court must "decide whether the action is wise or prudent or just," but he says the court simply "has to have a reasoned explanation."

However, over the past two years, he reports, "it turns out that some of those rules may have a sort of 'Trump-only exception' where courts are willing to be much more intrusive in looking into the decision-making processes of a federal agency" particularly when "they work for Donald Trump." And this, he adds, can be seen in a variety of areas, including environmental litigation and "all of the litigation relating to immigration."

Torres describes it as "a very unusual and not an entirely understandable impulse that these courts seem to have" when applying the administrative law.

"It raises the question of whether Donald Trump is being treated the way presidents have been treated throughout modern American history," Torres emphasizes – concluding that "there's a strong argument that [President Trump is] not being treated the same way" as he pursues inclusion of the citizenship question in the 2020 census.

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