Trump administration escalates fight over census citizenship question, turning to Supreme Court

The Trump administration announced Tuesday that it will directly ask the Supreme Court to overrule a federal court judge who last week barred officials from asking about citizenship on the 2020 census, saying in a court opinion that such a question would dramatically reduce the response rate -- and congressional representation -- of noncitizens.

The White House's highly unusual move, if approved by the Supreme Court, would allow the administration's lawyers to bypass intermediate appellate courts. Solicitor General Noel Francisco said in court papers filed Tuesday that the rare and fast turnaround is necessary if census questionnaires are to be printed in time.

The once-a-decade census determines not only how many seats are apportioned per district in the House of Representatives, but also how hundreds of billions of dollars in tax revenue are distributed.

It's been 30 years since the court took on an issue without waiting for a federal appeals court to weigh in. Francisco says the justices should hear arguments in April or a special session in May.

The many court challenges against the Trump administration's bid to add a citizenship question, legal experts tell Fox News, face an uphill battle not only because conservatives now command a 5-4 majority on the Supreme Court, but also because traditionally it's been the White House's prerogative to decide whether to inquire about citizenship on the census.

WATCH: ILLEGAL IMMIGRATIONS FEARFUL OF NEW CITIZENSHIP QUESTION

Former President Barack Obama's administration didn't ask the question in the 2010 census amid fears it would unconstitutionally intimidate illegal immigrants into avoiding answering their census questions -- and thus not count toward population totals used to determine the number of seats each state receives in the House of Representatives.

FILE - In this July 16, 2018, file photo, Department of Commerce Secretary Wilbur Ross speaks to the Department of Commerce in Washington. (AP Photo/Manuel Balce Ceneta, File)

FILE - In this July 16, 2018, file photo, Department of Commerce Secretary Wilbur Ross speaks to the Department of Commerce in Washington. (AP Photo/Manuel Balce Ceneta, File)

The citizenship question was last asked on the census in 1950, but beginning in 1970, a citizenship question was asked in a long-form questionnaire sent to a relatively small number of households, alongside the main census. In 2010, there was no long-form questionnaire.

"There is no credible argument to be made that asking about citizenship subverts the Constitution and federal law," Chapman University law professor and constitutional law expert John Eastman told Fox News. "The recent move is simply to restore what had long been the case."

Eastman also told Fox News it would be legally permissible for the government to only count citizens for purposes of determining representation in the House of Representatives. However, other legal experts have contested that view, saying the Constitution demands that all "persons" be tallied  -- not simply all citizens.

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Democrats would lose out because the citizenship question would affect predominantly liberal districts, but that's not a legally sufficient objection, legal analysts say.

The citizenship question represents the third time since October that Francisco is seeking the court's intervention without an appellate ruling. The other two involved Obama-era programs to shield young immigrants from deportation and allow transgender people to serve in the military.

"There is no credible argument to be made that asking about citizenship subverts the Constitution and federal law."

— Chapman University law professor John Eastman

The Supreme Court hasn't acted on the immigration case, and an appellate court has since ruled on the issue. The justices on Tuesday denied early review of the transgender service policy, but allowed Pentagon restrictions that had been blocked by lower courts to take effect while the appeals process unfolds.

Commerce Secretary Wilbur Ross announced in March 2018 that the 2020 census would be the first since 1950 to include a citizenship question. He contended that the question would help the government enforce the 1965 Voting Rights Act and ensure access to the ballot.

But 18 states, the District of Columbia, 15 big cities or counties, and immigrants' rights groups sued the Commerce Department, which designs the census, and claimed it failed to properly analyze the effect that the question would have on households with immigrants. The challengers said the Trump administration added the question to discourage immigrants from participating, potentially leading to a population undercount — and possibly fewer seats in Congress — in places that tend to vote Democratic.

U.S. District Judge Jesse M. Furman used Census Bureau estimates to conclude the citizenship question would depress responses in households with noncitizens by at least 5.8 percent.

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Furman ruled that Ross acted in an "arbitrary and capricious" manner and violated the law.

The justices already had agreed to an administration request to hear arguments over whether Furman could base his decision on depositions of high-ranking officials and other material that was not part of the administrative record the Commerce Department compiled in deciding to ask about citizenship. In the end, Furman largely stuck to that record and the court has now called off arguments that were scheduled for Feb. 19.

The census, conducted once per decade, is used to determine representation for each district in the House.

The census, conducted once per decade, is used to determine representation for each district in the House. (AP)

The court could decide in the next few weeks whether to set new arguments on the timetable the Justice Department wants.

During his confirmation hearings in October, Trump's pick to lead the Census Bureau, Steven Dillingham, largely avoided questions on the matter. He later won Senate confirmation.

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Sen. Steve Daines, R-Mont., tried to get Dillingham to weigh in, saying that citizens in “Montana should have more of a say in Washington, D.C., than illegal immigrants harboring in sanctuary cities across the country." But the nominee responded: “I have no plans to voice an opinion on that question.”

"It makes no sense why a state like California that harbors millions of illegal immigrants is rewarded with additional representation in Congress and taxpayer resources at the expense of more rural states like Montana," Daines told Fox News in October. "That is rewarding illegal behavior."

Fox News' Alex Pappas and The Associated Press contributed to this report.