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February 20, 2019

SCOTUS will hear census case that could affect Medicaid funding

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    The Supreme Court on Friday announced that it will hear a case that centers on whether the U.S. Department of Commerce (DOC) can add a citizenship question to the U.S. census, which a group of states and cities have argued would exacerbate undercounting of certain populations and jeopardize Medicaid and other population-based federal funding.

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    The U.S. census used to ask individuals about their citizenship status, but it has not included such a question in its main questionnaire since 1950. The Department of Justice (DOJ) in December 2017 requested that DOC again begin asking about individuals' citizenship status as part of the census survey, which will be printed in June, to help DOJ better enforce the Voting Rights Act.

    DOC Secretary Wilbur Ross in a memo released in March 2018 said the department would comply with DOJ's request. Ross said, "The citizenship question [that will be included on the census] will be the same as the one that is asked on the yearly American Community Survey." That survey, which the U.S. Census Bureau began in 2005, asks whether an individual is a U.S. citizen by birth, is a naturalized citizen, or is not a citizen. It does not ask whether an individual's presence in the United States is legal.

    However, some observers have raised concerns that including a citizenship question on the census might discourage undocumented immigrants from participating, which could result in a large number of individuals living in the United States going uncounted. That could affect Medicaid funding, as well as other federal funding, because the federal government uses census data to determine where to distribute federal funds.

    In April 2018, 17 states, the District of Columbia, and six cities filed a lawsuit in the U.S. District Court for the Southern District of New York against DOC's plan to add the citizenship question to the census.

    The states and cities in the suit argued that adding the question would negatively affect census responses in states with large immigrant populations and could exacerbate undercounting, which would directly threaten federal funding states receive for Medicaid and other population-based programs. The suit also argued that the change is "unconstitutional" because it violates the Constitution's requirement for an "actual enumeration" of the "whole number of persons" living in the United States every decade.

    Judge Jesse Furman of the U.S. District Court for the Southern District of New York last month blocked DOC from moving forward with its plan to add the citizenship question to the census. Furman in his ruling wrote that the approach the Trump administration took to add the citizenship question to the census violated the Administrative Procedure Act, which requires the federal government to carefully examine a policy before it is implemented. Furman noted Ross moved forward with the plan without taking into account recommendations from Census Bureau experts, who said adding the question to the census could affect the quality of the survey's data and lead to undercounts, and that Ross announced his plan "in a manner that concealed its true basis rather than explaining it."

    U.S. Solicitor General Noel Francisco appealed Furman's ruling to the Supreme Court, and requested that the high court expedite the case. Francisco argued that if the Supreme Court does not act quickly, "the government will be disabled for a decade from obtaining citizenship data through an enumeration of the entire population."

    SCOTUS agrees to hear the case

    The Supreme Court on Friday said it will consider the case under an expedited review process, without waiting for an appeals court to rule on the matter. According to the Times, the high court likely decided to quickly hear the case because census forms are expected to be printed in June.

    The Supreme Court scheduled arguments for the case to take place in late April. The Court is expected to rule on the case before the end of June (Liptak, New York Times, 2/15; AP/Politico, 2/15).

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