What's In a Question?

President Trump views the Supreme Court decision, last week, against the addition of a controversial citizenship question to the 2020 Census as a temporary setback as opposed to an unfavorable conclusion.  While Commerce Secretary Wilbur Ross said that after the decision the administration would be dropping the effort, tweets on Wednesday and Thursday has spurred the Justice and Commerce departments to pull out the stops and burn the midnight oil in order to come up with a new legal rationale for the inclusion of the question in time to meet the 2p.m. deadline today (Friday, 7/5/2019) set by a federal judge in Maryland to explain how it plans to proceed.  While this renewed fight may come at the ire of moderate Republicans who believe it to be fruitless and a waste of time, there is still a vocal contingent urging the president to continue the effort.  President Trump has even hinted at the potential of getting the question back on the form through use of executive order.

The tie between the Census and the formation of electoral districts makes any matter regarding the addition or subtraction of questions from the form inherently political.  Ross has stated previously that the proposed citizenship question would use the same wording as what is already in use in the Census Bureau’s American Community Survey.  Supporters of the addition of the question, such as The Heritage Foundation’s Senior Legal Fellow Hans A. von Spakovsky, view its addition as common sense in order to attain accurate data on the US population.  While detractors, such as Rep. Ilhan Omar, suggest that such a question would discourage immigrants, especially illegal immigrants, from participating in the Census.  This would, as they argue, lead to an undercount of the U.S. population and would impact the amount of federal funds and congressional seats going to districts with larger immigrant populations.

There is no question that the ruling served as a major setback for President Trump.  But it is important to understand that the ruling does not kill the issue, it merely sends it back to lower courts to be hashed out.  In a dissent joined by Justices Gorsuch and Kavanaugh, Justice Clarence Thomas wrote that the court should have stopped its analysis when it determined that the citizenship question was both constitutional and within the authority of the Commerce Secretary, and that by doubting Secretary Ross’ motives ignored the “the presumption of regularity” the courts owe to federal agencies.  Further cementing Justice Thomas as a bright and shining example of originalism on the Court today.

Now that we’ve gotten the context portion of this piece out of the way, lets jump into the hard reality.  Politics is a zero-sum game.  What helps Republicans hurts Democrats, and vice versa.  The fact that in 2019 a federal form tasked with gathering demographic data about people living in the United States asking if people living within the United States are citizens of the United States is ridiculous.  The fearmongering being spun up on the Left is blatantly irresponsible.  Let’s just clear the air, the data gathered by the Census cannot be used by federal law enforcement agencies to rally up illegal immigrants for mass deportation.  Title 13 of the US Code (The Census Law) is very straight forward, responses to Census Bureau surveys and censuses are required to be kept confidential and used for statistical purposes only.  The Census Bureau only publishes aggregated statics which do not reveal information about particular individuals, households or businesses.

This question is not malevolent or even unique to the United States in the “Trump Age”.  The United Nations recommends that its member countries ask a citizenship question on their censuses.  The United Kingdom, Australia, and Germany all ask the question.  Only in the U.S. has this issue been considered controversial.  Former Attorney General Eric “Too Fast Too Furious” Holder claim that the question is “irresponsible” and “unconstitutional”.  I’d beg to differ.  The question traces it’s roots back to none other than Thomas Jefferson, who first proposed the question in 1800.  The question officially became part of the decennial census in 1820 and was included on every census until 1950 when it was moved to the “long form”, which was sent to one in every six households, until its discontinuation in 2000.  Since then the question has been sent with the American Community Survey.  To recap, the question traces it roots back to the father of the Declaration of Independence, has been asked for longer than it has not been asked.

Regarding Holder’s doubts of constitutionality, I’d urge him to dust off his pocket constitution (I’m positive I’m not the only one who has one) and flip to Art. 1, Sec. 2, Cl. 3 wherein the power to conduct the census is given to the Congress, and in 13 U.S. Code Sec. 5, the power is delegated to the Secretary of Commerce who “shall prepare questionnaires, and shall determine the inquiries, and the number, form, and subdivisions thereof, for the statistics, surveys, and censuses provided for in this title.”

In my time analyzing the bureaucracy I’ve found that Occam’s razor tends to apply.  When there exist multiple explanations for an occurrence, the one that requires the least speculation is usually correct.  In reality this citizenship question is nothing more than a mundane bureaucratic form change.  One which is inline with numerous other nations and allies throughout the world.  The Democrats are providing lip service stating that they are looking out for vulnerable immigrant communities, while in reality they are simply fearmongering.  They don’t care about response rates; they care about how the returns will affect future electoral maps.  The reality is that the question provides valuable data which will improve the electoral equality for all U.S. citizens by staying true to the principle, one person, one vote.

Backed Up Against the Wall: Trump's Options Moving Forward

As Nancy Pelosi regained her speakership after spending the past eight years in the minority, she gaveled in the end of Republican unified government for the foreseeable future.  One of her first acts in the role was to call a vote to reopen the government, noticeably and poignantly, lacking any funding for the border wall.  What is sure to be remembered as a Republican mishandling of a previously bi-partisan issue, the question has shifted to “Now what?” for many on the Right who have been left, unceremoniously, without closure.  Has border security become an afterthought?  Will Republicans go home and tell their constituents “we’ll get ‘em next time?”

One hopes not, there is still much to be done and fight left in the administration.  What Republicans need to be asking is what actions can President Trump take to unilaterally protect the border?  Back in November, the Center for Immigration Studies released a backgrounder by Dan Cadman which provided an overview of the President’s emergency immigration powers.  Among the many listed, use of the military, border agent force multipliers, and modifying the asylum policy show the most promise.

In late October 2018, the President deployed more than 5,000 active-duty soldiers to the US-Mexico border to assist Border Patrol agents in preparation for the arrival of the caravan of migrants making their way from Central America.  Troops were utilized for their specialized skills in setting up the logistical supply chains and infrastructure needed to handle the asylum seekers, numbering in the thousands.

With the operation set to end on Jan. 31st, the Department of Homeland Security (DHS) is preparing to request that the Pentagon not only extend the deployment, but send additional troops.  One hopes the severity of this crisis will not be lost on the new Democratic majority in the House and urges them to reconsider their stance on the border wall funding.  As they have a history of ignoring the expertise of border officials in the past, it’s unlikely they will change course now.

As mentioned previously, President Trump’s options don’t solely rely on the armed forces.  Per Cadman in the backgrounder, “the president can assign as many federal law enforcement personnel as he chooses, en masse, to be temporarily assigned to border security duties.”  The federal agency most likely to be readily prepared to deal with this issue and most impact the border security goals as a force multiplier is the Drug Enforcement Agency (DEA).  DEA agents are already active along the US-Mexico border battling the ever present threats of drug trafficking by illegal immigrants affiliated with the cartels.  They possess the specialized training (language, logistics, terrain) to deal with the migrants, and by securing the border they also work towards their agency’s mission of reducing the flow of drugs and gangs entering the Country.

The President is also empowered by the Immigration and Nationality Act (INA) to cross-designate and deploy local and state law enforcement officers to assist in the enforcement of immigration laws.  Section 103(a)(10) of the INA reads:

(10) IN the event the Attorney General determines that an actual or imminent mass influx of aliens arriving off the coast of the United States, or near a land border, presents urgent circumstances requiring an immediate Federal response, the Attorney General may authorize any State or Local law enforcement officer, with the consent of the head of the department, agency, or establishment under whose jurisdiction the individual is serving, to perform an exercise any of the powers, privileges, or duties conferred or imposed by this chapter or regulations issued thereunder upon officers or employees of the Service.

Empowering local and state agencies to assist in border security has numerous positives.  Chief among them is that these local officers operating in the region are familiar with illegal immigration and are best equipped to know what solutions would work best in their jurisdiction.  Additionally since it is unlikely that the Governor of California, Jerry Brown, would condone such actions, but Doug Ducey (Governor of Arizona) or Greg Abbott (Governor of Texas) might, it would allow for the President to focus federal law enforcement resources on the California border and entrust the state/local officials in Arizona and Texas to be dedicated to the cause of protecting their communities.

The options listed above are all reactionary in nature.  To truly impact our broken immigration policies, we will need to close the loopholes in the asylum system.  Too often illegal immigrants are able to shirk a quick deportation by claiming asylum.  With a success rate of around 10% actually being granted asylum it is clear that the system is broken.  On December 20th, the Administration took steps to deal with the issue when Secretary Kirstjen M. Nielsen accounted that the United States will begin the process of invoking Section 235(b)(2)(C) of the INA, better known as the Migration Protection Protocol (MPP).

Under the MPP, individual who enter the United States from Mexico illegally may be returned to Mexico for the duration of their immigration proceedings.  In the announcement Nielson said, “We will confront this crisis head on, uphold the rule of law, and strengthen our humanitarian commitments.  Aliens trying to game the system to get into our country illegally will no longer be able to disappear into the United States, where many skip their court dates.  Instead, they will wait for an immigration court decision while they are Mexico.  ‘Catch and release’ will be replaced by ‘catch and return.’”

The impacts of this move will serve to reduce the number of asylum claims by removing the incentive to attempt to game the system and skip their court appearance and never be seen again.  Those who actually need asylum will receive the focus they deserve and experience faster processing times since the system will not be burdened by false claimants.  Our border security personnel will be able to focus on their primary mission of keeping our borders secured instead of reducing the asylum backlog.

In an age when the Left is calling for the dissolution of ICE and CBP and refuse to fund a physical barrier along the border, this Administration must find a creative solution to surpass the barriers and ensure that the border is secure.  This is not only an immigration issue, but much broader national security issue.  Something must be done, if not a physical barrier then we must use what tools and options we have at our disposal.

- William F. Buckley Jr. Jr.