As the U.S. Supreme Court weighs whether the Trump administration can ask people if they are citizens on the 2020 Census, the Census Bureau is quietly seeking comprehensive information about the legal status of millions of immigrants.
Under a proposed plan, the Department of Homeland Security would provide the Census Bureau with a broad swath of personal data about noncitizens, including their immigration status, The Associated Press has learned. A pending agreement between the agencies has been in the works since at least January, the same month a federal judge in New York blocked the administration from adding the citizenship question to the 10-year survey.
On Wednesday, a federal judge in California also declared that adding the citizenship question to the Census was unconstitutional, saying the move “threatens the very foundation of our democratic system.”
The data that Homeland Security would share with Census officials would include noncitizens’ full names and addresses, birth dates and places, Social Security numbers, and highly sensitive alien registration numbers, according to a document signed by the Census Bureau and obtained by AP.
Such a data dump would be apparently unprecedented and give the Census Bureau a view of immigrants’ citizenship status that is even more precise than what can be gathered in door-to-door canvassing, according to bureau research.
Six former Census and DHS officials said they were not aware that individuals’ citizenship status had ever before been shared with the Census.
“Generally, the information kept in a system of records is presumed to be private and can’t be released unless it fits with a certain set of defined exceptions,” said Leon Rodriguez, who led the DHS agency responsible for citizenship under the Obama administration.
The move raises questions as to what the Trump administration seeks to do with the data and concerns among privacy and civil rights activists that it could be misused.
Census spokesman Michael Cook said the agreement was awaiting signatures at DHS, but that Census expected it would be finalized “as soon as possible.”
“The U.S. Census Bureau routinely enters into agreements to receive administrative records from many agencies, including our pending agreement with U.S. Citizenship and Immigration Services, to assist us in our mission to provide quality statistics to the American public,” Cook said in a statement. “By law, the Census Bureau does not return any records to the Department of Homeland Security or any of its components, including Immigration and Customs Enforcement.”
Jessica Collins, a spokeswoman for Citizenship and Immigration Services, said no agreement has been finalized. She said the purpose of such agreements is to help improve the reliability of population estimates for the next Census.
“The information is protected and safeguarded under applicable laws and will not be used for adjudicative or law enforcement purposes,” Collins said.
Civil rights groups accuse the White House of pursuing a citizenship question because it would discourage noncitizens from participating in the Census and lead to less federal money and representation in Congress for states with large immigrant populations. Census researchers say including the question could yield significant underreporting for immigrants and communities of color.
Under the pending three-year information-sharing agreement, the Census Bureau would use the DHS data to better determine who is a citizen and eligible to vote by “linking citizenship information from administrative records to Census microdata.”
“All uses of the data are solely for statistical purposes, which by definition means that uses will not directly affect benefits or enforcement actions for any individual,” according to the 13-page document signed by Census.
Amy O’Hara, who until 2017 directed Census Bureau efforts to expand data-sharing with other agencies, said she was surprised a plan was in the works for sharing alien numbers, which are assigned to immigrants seeking citizenship or involved in law enforcement action.
“I wish that we were not on this path,” she said. “If the citizenship question hadn’t been added to the Census, this agreement never would have been sought.”
In previous administrations, government lawyers advised Census researchers to use a minimal amount of identifying data to get their jobs done, said O’Hara, now co-director of Georgetown University’s census research center. During her tenure, the bureau never obtained anything as sensitive as alien numbers, which O’Hara called “more radioactive than fingerprints.”
Some privacy groups worry the pending agreement is an end-run around the courts.
“What’s going on here is they are trying to circumvent the need for a citizenship question by using data collected by another agency for a different purpose,” Jeramie Scott, an attorney at the Electronic Privacy Information Center. “It’s a violation of people’s privacy.”
The agreement would bar the bureau from sharing the data with outside agencies. But confidentiality provisions have been circumvented in the past.
During World War II, Congress suspended those protections, and the bureau shared data about Japanese-Americans that was used to help send 120,000 people to internment camps. Most were U.S. citizens. From 2002-03, the Census Bureau provided DHS with population statistics on Arab-Americans that activists complained was a breach of public trust, even if the sharing was legal.
The quiet manner in which the agencies pursued sharing records could stoke concerns that the Trump administration might be seeking to create a registry of noncitizens, said Kenneth Prewitt, who was Census director from 1998-2001 and is now a Columbia University professor.
Census scholars say that could not happen without new legislation, which is not likely under the Democratic majority in the House of Representatives.
In mid-April, the Supreme Court will hear arguments as to whether the 2020 Census can include a citizenship question, with a decision expected weeks later.
Next week, Commerce Secretary Wilbur Ross, whose department oversees the census, is set to testify before the Senate on his role in the controversy.
About 44 million immigrants live in the United States—nearly 11 million of them illegally. The 10-year headcount is based on the total resident population, both citizens and noncitizens.
The Census figures hugely in how political power and money are distributed in the U.S., and underreporting by noncitizens would have an outsized impact in states with larger immigrant populations. Political clout and federal dollars are both at stake because 10-year survey results are used to distribute Electoral College votes and congressional seats, and allocate more than $880 billion a year for services including roads, schools and Medicare.
The push to get a clearer picture of the number of noncitizens in the U.S. comes from an administration that has implemented hard-line policies to restrict immigration in numerous agencies.
Against advice of career officials at the Census Bureau, Ross decided last year to add the citizenship question to the 10-year headcount, saying the Justice Department requested the question to improve enforcement of the federal Voting Rights Act.
Some prominent GOP lawmakers endorsed the citizenship question, saying it would lead to more accurate data, and a joint fundraising committee for Trump’s re-election campaign and the Republican National Committee used it as a fundraising tool. Immigrants’ rights groups and multiple Democratic-led states, cities and counties filed suit, arguing that the question sought to discourage the Census participation of minorities.
A citizenship question has not appeared on the once-in-a-decade headcount since 1950, though it has been on the American Community Survey, for which the Census Bureau annually polls 3.5 million households.
Documents and testimony in a New York trial showed that Ross began pressing for a citizenship question soon after he became secretary in 2017 and that he consulted Steve Bannon, President Donald Trump’s former chief strategist, and then-Kansas Secretary of State Kris Kobach, a vocal advocate of tough immigration laws who also has advised the president. Emails showed that Ross himself had invited the Justice Department request to add the citizenship question.
A March 2018 memo to Ross from the Census Bureau’s chief scientist says the DHS data on noncitizens could be used to help create a “comprehensive statistical reference list of current U.S. citizens.” The memo discusses how to create ‘baseline citizenship statistics’ by drawing on administrative records from DHS, the Social Security Administration, State Department and the Internal Revenue Service, in addition to including the citizenship question in the census.
In January, New York federal judge Jesse Furman ruled that Ross was “arbitrary and capricious” in proposing the question.
The new data comes from Citizenship and Immigration Services, a DHS agency that has taken on a larger role in enforcing immigration restrictions under Trump.
After Francis Cissna took over as director in October 2017, the agency initiated a “denaturalization task force” aimed at investigating whether immigrants were obtaining their citizenship fraudulently. The agency also has slashed the refugee program to historic lows and proposed reinterpreting immigration law to screen whether legal immigrants are likely to draw on the public welfare system.
Cissna also rewrote the agency’s mission statement: “Securing America’s promise as a nation of immigrants” became “Securing the homeland and honoring our values.”
The man who drove a getaway car pleaded guilty Wednesday to drug and fleeing-an-officer charges in a 2016 incident in which a Walworth County sheriff’s deputy fatally shot a passenger in the car.
Jose G. Lara, 33, of Milwaukee pleaded guilty to conspiracy to deliver cocaine and attempting to flee a traffic officer. Those were the two charges he originally faced in the Feb. 24, 2016, incident in which then-Deputy Juan Ortiz shot and killed Christopher J. Davis, 21, of Milwaukee.
In February 2018—almost two years after the incident—the Walworth County District Attorney’s Office charged Lara with party to second-degree reckless homicide. That charge was dismissed and read into the record as part of the plea agreement.
Although Lara did not pull the trigger, case law from the 1970s says a person is responsible for other crimes that are “a natural and probable consequence of the intended criminal acts.”
Police had responded to the parking lot of Roma’s Ristorante and Lounge in East Troy for an anticipated drug bust when they saw Lara start to drive away.
Juan Ortiz, who later became a detective with the sheriff’s office, fired two shots into the car as it came toward him, according to court documents.
One of the bullets hit Davis in the head.
Lara drove out of the parking lot and eventually reached speeds exceeding 100 mph, according to the criminal complaint. He and another passenger, Roberto Juarez-Nieves Jr., later left the car and fled on foot in Muskego.
Davis, who was found in the car, died an hour later.
Then-District Attorney Dan Necci said the shooting was justified.
In his decision letter, Necci said Ortiz fired the shots as he got out of the car’s way. Ortiz said he heard the tires squeal and engine rev and thought his life was in danger.
Lara, according to Necci’s letter, said he was not trying to run over Ortiz—although he could see how the deputy would have believed that.
Doretha Lock, Davis’ mother, in November filed a lawsuit against Ortiz and other law enforcement officials and municipalities, saying “deliberate indifference and negligence” preceded her son’s death.
She also alleged some of the officers destroyed squad-car camera video.
In the lawsuit, Lock argues that police botched the drug bust that brought them to the parking lot in the first place. The bust, she claims, was hastily organized and poorly executed.
Ortiz had not been part of the original arrest plan and was supposed to serve as backup, according to the lawsuit.
The lawsuit argues the use of deadly force was not justified. It also says Davis did not know the other two people in the car were going to a drug deal.
Both sides will be able to argue Lara’s sentence length at a hearing at 2 p.m. May 30.
This article was updated at 4:53 p.m. Wednesday.
State Supreme Court candidate Brian Hagedorn has reversed himself.
In the past, Hagedorn has taken what scholars say is an unconventional and even radical position that the U.S. Constitution leaves it to the states to decide such issues as leading prayer in schools and installing religious monuments in courthouses.
Hagedorn has even gone so far as to argue that there is nothing in the Constitution that would prohibit a state from declaring its own official religion.
But when asked about these past writings, Hagedorn—already under fire for comments on gay rights—said this week he has changed his mind on this bedrock legal issue of separation of church and state.
The appeals court judge said he now believes the federal government has the authority under the U.S. Constitution to step in if it believes a state has gone too far in establishing an official religion or favoring one over another.
“Under current doctrine, it is clear no state may establish their own religion,” Hagedorn clarified in an email to the Journal Sentinel on Tuesday.
Hagedorn’s legal about-face brought criticism from his opponent’s campaign and other foes. They suggested that the self-described originalist has now become a political pragmatist.
“Brian Hagedorn can’t hide from his radical and extreme agenda,” said Tyler Hendricks, campaign manager for appeals court Judge Lisa Neubauer, when informed of Hagedorn’s change of heart.
“It’s hard to put much faith in Brian Hagedorn’s election season change of heart,” said Joanna Beilman-Dulin, research director for the liberal group One Wisconsin Now.
Hagedorn, who is favored by conservatives, faces off against Neubauer, a liberal darling, in a crucial Supreme Court contest April 2.
If Neubauer were to win, liberals would be in prime position to seize control of the high court when the next seat comes up in 2020—when Democrats expect a strong turnout during Wisconsin’s presidential primary.
In the current race, Hagedorn has found himself on the defensive over what some see as his discriminatory views on gay rights issues.
On a blog he wrote a dozen years ago, Hagedorn wrote that a Supreme Court ruling overturning an anti-sodomy law opened the door to the legalization of bestiality and sex with animals and called Planned Parenthood a “wicked organization.”
He also founded a school that can ban teachers and students in gay relationships and gave paid speeches to a legal organization that has argued in favor of anti-sodomy laws.
In response, Hagedorn has argued he is under attack because of his evangelical Christian faith. He has yet to say whether he still holds many of the positions he has taken on controversial subjects over the years.
But on Tuesday, the conservative jurist, who was appointed to the appellate bench by former Gov. Scott Walker, did the judicial equivalent of a 180-degree turn on the so-called Establishment Clause of the First Amendment to the U.S. Constitution. That provision prohibits the government from establishing an official religion or giving preference to one faith. The rest of the First Amendment guarantees freedom of religion and speech.
In his 2015 application to become an appellate judge, Hagedorn wrote that the Establishment Clause was “at least in large part, a federalism provision leaving regulation of religion to the states.” He accused judges of using the constitutional ban on establishing religions to impose their views on society.
“Establishment Clause jurisprudence generally looks very little like law,” Hagedorn wrote in response to a question about bad Supreme Court decisions from past 30 years.
“Much of it has the symptoms of a Court discussing desirable social policy or the proper place of religion in public life and then crafting a legal rule that makes sense in light of that policy. This is not how judges should make law.”
That was a more nuanced position than the one Hagedorn took in his old blog, which he wrote when he was a 27-year-old law student, law firm intern and father of two children.
In a July 2005 post, he wrote that the federal Constitution made clear in the Establishment Clause that “states can do whatever they want on religion and the federal government was not going to intervene.”
To clarify, he added that the federal Constitution doesn’t prohibit states from installing religious monuments in their courthouses or establishing their own official religions, including secular humanism, which he considered a belief system.
“The Constitution, in my opinion, would not prohibit Maine from declaring secular humanism its state religion,” he wrote. “The point of my post is not to argue that Christianity should be our state religion. It is simply to point out that pretty much all Establishment Clause cases decided by the Supreme Court, including the most recent 10 Commandment cases, have absolutely no foundation in the Constitution at all.”
He then endorsed more religion in public life. He said removing religion from this arena would create a society opposed to faith.
“A secular public sphere is not only not neutral, it is (and is in reality now) antagonistic toward people of faith,” Hagedorn wrote. “That’s why we’re fighting back.”
Constitutional scholars say Hagedorn’s past writings ran counter to nearly 100 years of Supreme Court precedent.
They said this week that the high court has explicitly applied or “incorporated” the protections in the Bill of Rights—including the ban on establishing a religion—to all of the states as a result of the passage of the 14th Amendment in 1868.
“Very few consider this an open, viable question today,” said Scott Idleman, a Marquette Law School professor specializing in law and religion who has donated to Walker in the past. “It’s really water under the bridge.”
Howard Schweber, a constitutional law professor at UW-Madison, went a step further, saying Hagedorn’s past writings on this issue represent a “radical position and one far outside the mainstream.”
“These are fringe views even among conservatives,” Schweber said.
But now it appears that Hagedorn has undergone a road-to-Damascus moment.
In a Tuesday email to the Journal Sentinel, Hagedorn said he no longer espouses his old views, even as he downplayed the significance of the issue.
“While this discussion is mostly academic, my position on incorporation of the Bill of Rights has shifted,” Hagedorn wrote, without specifying when this happened.
He said he now believes the “original public meaning” of the 14th Amendment incorporated the Bill of Rights, including the Establishment Clause, and applied them to the states. He added that he reaches that conclusion differently than most others.
Contrary to Idleman, Hagedorn said this is not a settled issue but the subject “of lively, ongoing debate among constitutional scholars and courts.”
“That said, my goal in any case raising this question would be to follow the governing precedent of the U.S. Supreme Court,” Hagedorn wrote.
And just so his 2005 blog post on this issue isn’t misconstrued, Hagedorn added that as a matter of public policy, he believed even back then that it would be “a very bad idea” for any state to establish an official religion.
“What is constitutional and what is good public policy are two very different questions,” he said Tuesday—a distinction he has previously made regarding legalization of bestiality.
Jean Mary Hollis