Fox News Legal Analyst Says Trump's Census Citizenship Question Goes Against the Constitution

Andrew Napolitano, the senior judicial analyst for Fox News, said on Monday that he disagrees with the Trump administration's efforts to add a citizenship question to 2020 census surveys, arguing that it goes counter to the First Amendment of the Constitution.

"To me, it's a First Amendment issue," Napolitano, a former New Jersey Superior Court judge, explained in an interview on America's Newsroom. "The First Amendment prohibits Congress from abridging the freedom of speech. It also prohibits Congress from compelling people to speak," he pointed out. "Just like you have a right to remain silent when you're arrested, you have a right to remain silent when the census comes."

Despite his personal opposition to the proposed census question, which would ask respondents to list the citizenship status of every member in their household, Napolitano said he believed the Supreme Court would uphold the Trump administration's demand. The government's opinion "seemed to have captured a majority view when the oral argument was held in the Supreme Court," he said.

Save the census signs
Signs sit behind the podium before the start of a press conference with New York Attorney General Eric Schneiderman to announce a multi-state lawsuit to block the Trump administration from adding a question about citizenship to the 2020 Census form, at the headquarters of District Council 37, on April 3, 2018 in New York City Getty/Drew Angerer

"I think the Supreme Court is going to uphold it," he added later.

During his interview, Napolitano explained that the government can legally prosecute individuals who answer census questions incorrectly as well as when they refuse to answer. However, he pointed out that the government has never prosecuted someone for refusing to answer a census question. Explaining why someone may not want to answer, the former judge said some U.S. residents may fear they or family members could be deported if they were not all in the country as legal immigrants.

"The fear is that people will answer incorrectly and there will be an undercount of human beings and, therefore, an under-allocation of federal benefits and federal resources," Napolitano said. "The other fear is that people will not answer correctly for fear that they're going to be deported."

Never before in the history of the U.S. has an official government census directly asked for a respondent to list their citizenship. Legal analysts Thomas Wolf and Brianna Cea from the Brennan Center for Justice at the New York University School of Law have explained that the question is "historically unprecedented."

Reporting last week revealed that Trump administration officials appear to have hidden their real motivations for adding the citizenship question to the census. Although Trump officials have argued that the question aims to ensure that government benefits go only to U.S. citizens, previously unreported documents were discovered by the daughter of a deceased GOP strategist Thomas Hofeller showing a different story.

2020 Census Protest
Demonstrators rally at the Supreme Court in Washington, D.C. on April 23 to protest a proposal to add a citizenship question in the 2020 Census AFP/MANDEL NGAN

The files revealed an overtly partisan plan to add the citizenship question in order to encourage underreporting of populations within communities where large numbers of minorities reside. Through this effort, Republicans believed they would be able to redistrict areas in their favor that generally support Democratic candidates.

"We now know that the citizenship question germinated in an effort to limit the power of minority communities," Dale Ho, the lawyer who has argued the case against the citizenship question at the Supreme Court, told The Daily Beast. "It's all laid out there in black and white. It's pretty remarkable."

The American Civil Liberties Union (ACLU) has filed a notice with the Supreme Court arguing that Trump officials "falsely testified" about the reasons for the question being added to the census.

"Simply put, the administration doesn't want certain people to count. The ACLU has sued the Trump administration to stop this plan, which intentionally discriminates against immigrant communities of color and violates the constitutional mandate to count the U.S. population accurately," a statement on the ACLU website explained.