Roberts Court Throws Census Citizenship Question in Doubt

The Supreme Court ruled yesterday that it was constitutional to include a question about citizenship on the census, and that Commerce Secretary Wilbur Ross’ decision to do so was “reasonable and reasonably explained.” The majority in a 5-4 decision, however, blocked the Commerce Department, the agency that conducts the decennial census, from asking about citizenship on the 2020 census because, in the Court’s view, the reason “seems to have been contrived.”

The Justices did affirm part of a lower court ruling, leaving open the possibility that the Commerce Department could keep the citizenship question on the census if it were to present a convincing explanation as to how the Secretary arrived at that decision.

The majority decision, written by Chief Justice Roberts, is curious, to say the least. Let’s take a look.

Roberts starts out by discussing the history of the citizenship question on the census.

Every census between 1820 and 2000 (with the exception of 1840) asked at least some of the population about their citizenship or place of birth. Between 1820 and 1950, the question was asked of all households….In 2010, the year of the latest census, the format changed again. All households received the same questionnaire, which asked about sex, age, race, Hispanic origin, and living arrangements. The more detailed demographic questions previously asked on the long-form questionnaire, including the question about citizenship, were instead asked in the American Community Survey (or ACS), which is sent each year to a rotating sample of about 2.6% of households….

In 2010, the year of the latest census, the format changed again. All households received the same questionnaire, which asked about sex, age, race, Hispanic origin, and living arrangements. The more detailed demographic questions previously asked on the long-form questionnaire, including the question about citizenship, were instead asked in the American Community Survey (or ACS), which is sent each year to a rotating sample of about 2.6% of households.

There being no question about the historical basis for including the citizenship question, Roberts turns to the constitutional question.

The Enumeration Clause permits Congress, and by extension the Secretary, to inquire about citizenship on the census questionnaire. That conclusion follows from Congress’s broad authority over the census, as informed by long and consistent historical practice that “has been open, widespread, and unchallenged since the early days of the Republic.”

With Chief Justice Roberts finding that the citizenship question is allowable under the Constitution, he addresses Secretary Ross’ reasoning to include that question on all 2020 census forms.

The Secretary’s decision was supported by the evidence before him….That decision was reasonable and reasonably explained, particularly in light of the long history of the citizenship question on the census .

Furthermore:

The Enumeration Clause of the Constitution does not provide a basis to set aside the Secretary’s decision. The text of that clause “vests Congress with virtually unlimited discretion in conducting the decennial ‘actual Enumeration,’” and Congress “has delegated its broad authority over the census to the Secretary.”

In light of the early understanding of and long practice under the Enumeration Clause, we conclude that it permits Congress, and by extension the Secretary, to inquire about citizenship on the census questionnaire. We need not, and do not, decide the constitutionality of any other question that Congress or the Secretary might decide to include in the census.

{text}

Chief Justice Roberts did find that “The Secretary’s decision is reviewable under the Administrative Procedure Act.” The APA went into effect in 1946 and allows federal courts to review the process by which federal agencies makes regulations in order to make sure this process is not arbitrary, capricious, an abuse of discretion, or not in accord with established law – or in this case, it turns out, “seemingly contrived.” So, having found the question constitutionally-sound and the decision to include that question on the 2020 census “reasonable and reasonably explained,” Chief Justice Roberts voted with the majority to prohibit the Commerce from doing so because he “must demand something better than the explanation offered for the action taken in this case.”

Both Justice Thomas and justice Alito wrote dissenting opinions and both strongly criticized the reasoning behind Chief Justice Roberts opinion.

Here is Thomas, joined by Justices Gorsuch and Kavanaugh,

The Court does not hold that the Secretary merely had additional, unstated reasons for reinstating the citizenship question. Rather, it holds that the Secretary’s stated rationale did not factor at all into his decision.

The Court’s holding reflects an unprecedented departure from our deferential review of discretionary agency decisions. And, if taken seriously as a rule of decision, this holding would transform administrative law. It is not difficult for political opponents of executive actions to generate controversy with accusations of pretext, deceit, and illicit motives. Significant policy decisions are regularly criticized as products of partisan influence, interest- group pressure, corruption, and animus. Crediting these accusations on evidence as thin as the evidence here could lead judicial review of administrative proceedings to devolve into an endless morass of discovery and policy disputes not contemplated by the Administrative Procedure Act (APA).…Unable to identify any legal problem with the Secretary’s reasoning, the Court imputes one by concluding that he must not be telling the truth. The Court, I fear, will come to regret inventing the principles it uses to achieve today’s result.

Justice Alito wrote his own opinion.

To put the point bluntly, the Federal Judiciary has no authority to stick its nose into the question whether it is good policy to include a citizenship question on the census.

and

There is a broad international consensus that inquiring about citizenship on a census is not just appropriate but advisable. No one disputes that it is important to know how many inhabitants of this country are citizens.

Justice Alito concludes:

Throughout our Nation’s history, the Executive Branch has decided without judicial supervision or interference whether and, if so, in what form the decennial census should inquire about the citizenship of the inhabitants of this country. Whether to put a citizenship question on the 2020 census questionnaire is a question that is committed by law to the discretion of the Secretary of Commerce and is therefore exempt from APA review.

In sum, Chief Justice Roberts affirmed in no uncertain terms that asking about citizenship on the census is constitutional, as well as routine, having been included in 19 of the 23 censuses taken since 1790. He also ruled that Commerce Secretary Ross’ decision to include a citizenship question in 2020 was “reasonable and reasonably explained.” In order to side with the four other Justices (Bryer, Kagan, Ginsburg, and Sotomayor) in blocking the question, Chief Justice Roberts cited the the APA as justification, making an arbitrary decision unsupported by the Constitution, existing law, or precedent.

Two questions remain: Will the Commerce Department go back to court with a clear and coherent argument as to why the question should be included on the 2020 Census in time for that question to actually appear on the Census?; and, Will any argument the Commerce Department may make compel Chief justice Roberts to rule on the plain facts of the case?

If President Trump decides to go back to court, lawyers for the government would do well to quote extensively from Chief Justice Roberts’ decision when arguing why the courts have erred in blocking the citizenship question.

The President did say yesterday:

I have asked the lawyers if they can delay the Census, no matter how long, until the United States Supreme Court is given additional information from which it can make a final and decisive decision on this very critical matter.

If the citizenship question is blocked by the courts from being included on the 2020 Census the American people will be deprived of vital information about the United States population without adequate legal justification.

ERIC RUARK is the Director of Research for NumbersUSA