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Background: Due in large part to the Trump Administration’s efforts to add a question to the Census regarding citizenship, there has been concern in immigrant communities regarding participation in the 2020 Census as it pertains to the safety of personal information. While the U.S. Supreme Court prevented the Department of Commerce from adding a citizenship question to the Census,[i] questions remain about what level of sharing of personal information from the Census is possible by the federal governments. Please see below an analysis of laws affecting data-sharing and Census participation.

Executive Order 13880

Executive Order 13880  (EO 13880) was issued on  July 11, 2019 after the U.S. Supreme Court decision denying the citizenship question on the Census.[ii] Under the Executive Order, President Trump directed that all government departments, including the Department of Homeland Security (DHS), share any information regarding citizenship that they have with the Department of Commerce, which operates the Census Bureau.

While this order has caused concern about the right of immigrants to privacy, it is highly unlikely that it will lead to any consequences regarding immigration enforcement actions. This is because EO 13880 directs DHS to give its information to the Department of Commerce, rather than the Department of Commerce giving information to DHS. Accordingly, DHS officials will not gain any additional information on individuals they did not have already and will not gain any information from the Census Bureau in connection with the 2020 Census.

General Privacy Laws

Despite the lack of a citizenship question on the 2020 Census, and the relative inability of the DHS to gain information through EO13880, some communities have still expressed hesitation regarding responding to and participating in the 2020 Census. The United States has strict statutory rules regarding the privacy of Census respondents’ data. Under U.S. Code Title 13, section 9, data received by the Census Bureau may only be used for statistical purposes[iii] and any reports given to other Departments by the Census Bureau may only regard general population statistics and demographics.[iv] 13 U.S.C. XX not only bars the publication or sharing of any Census data which could be used for the personal identification of a respondent but holds that no person other than a sworn officer or employee of the Department of Commerce may even examine the data.[v]

Furthermore, no member of the United States government may request or acquire for any reason copies of Census reports which would lead to the personal identification of a respondent.[vi] In the very rare case of a leak to another governmental Department, such copies are immune from any legal process, meaning they cannot be entered as evidence at judicial trials or administrative proceedings. Thanks to these statutory privacy restrictions, there is not a legal process by which DHS officials may either request, acquire, or use data from the 2020 Census which would lead to the personal identification of a participant.

 

Why Should Immigrants be Encouraged to Respond to the 2020 Census?

  1. Census response is critical for vital programs to receive federal funding.

All people should be encouraged to respond and participate in the Census, as response to the Census is critical for future federal monetary programmatic support and community improvement. Federal programmatic support is based off population statistics provided by the Census which enables the federal government to more efficiently direct resources.

In anticipation of the 2020 Census, Bishop Frank Dewane, of Venice, Florida, the then-Chairman of the USCCB Committee on Domestic Justice and Human Development, issued the following statement regarding the importance of ensuring an accurate count for the Census:

“Our country conducts a Census every ten years to count the number of people residing in the United States. Census data helps direct more than $800 billion annually to key programs designed to advance the common good, strengthen families and reduce poverty. The Catholic Church and other service providers rely on the national Census to provide an accurate count in order to effectively serve those in need.”

Bishop Joe Vasquez, of Austin, Texas, the then-Chairman of the Committee on Migration, also emphasized the need for immigrants to respond to the Census.

“We urge for all people to be counted in the Census, regardless of their citizenship…Our society, rooted in the strength of the family, cannot risk missing this opportunity to give children and parents the tools they need to succeed.”

 

  1. Census data is also critical for proper political representation of the local community.

In fact, the original purpose of the Census was to dictate how many representatives each state received. Article I, Section 2 of the Constitution mandates that an apportionment of representatives among the states must be carried out every 10 years. Census data determines how many seats in the U.S. House of Representatives each state receives for the next 10 years. Responding to the Census means that your community and state will receive the proper number of representatives to advocate for your interests.

 

  1. Census data promotes community growth.

Not only does the Census affect federal support and political representation, but it also has a direct, practical effect on the local economy and public safety. Businesses use Census data to decide where to build factories, offices, and stores, which creates jobs. Developers use the Census to build new homes, and local governments use the Census for public safety and emergency preparedness.[vii]

 

[i] Department of Commerce v. New York, 139 S.Ct. 2551, 2606 (2019).
[ii] Executive Order 13880, “Collecting Information About Citizenship Status in Connection With the Decennial Census”, (July 11, 2019)., available at https://www.federalregister.gov/documents/2019/07/16/2019-15222/collecting-information-about-citizenship-status-in-connection-with-the-decennial-census
[iii] 13 U.S.C. §9(a)(1)
[iv] 13 U.S.C. §8
[v] 13 U.S.C. §9
[vi] Id.
[vii] https://www.census.gov/programs-surveys/decennial-census/about/why.html