By Krista Doherty
UPDATE: On June 27, shortly after the Supreme Court blocked the addition of a citizenship question on the 2020 U.S. Census, President Trump responded with a tweet declaring his disappointment and announcing he had talked to lawyers to see “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 critical matter.”
Trump reiterated his annoyance a few days later, in a July 2 tweet, saying, “I have asked the Department of Commerce and the Department of Justice to do whatever is necessary to bring this most vital of questions, and this very important case, to a successful conclusion.”
The same day, DOJ trial attorney Kate Bailey confirmed in an email to the plaintiffs that the government had decided to begin printing the 2020 census without the citizenship question. Secretary Ross, while stating his disappointment in the court decision also confirmed the printing of the census has begun without the citizenship question. On July 3rd, President Trump contradicted those statements by Bailey and Secretary Ross, tweeting, “The News Reports about the Department of Commerce dropping its quest to put the Citizenship Question on the Census is incorrect or, to state it differently, FAKE! We are absolutely moving forward, as we must, because of the importance of the answer to this question.” Trump tweeted again the next day, restating that the administration is still working on adding the citizenship question.
On July 5th, President Trump said his reasoning behind the citizenship question, included, “Number one, you need it for Congress — you need it for Congress for districting,” and continued with, “You need it for appropriations — where are the funds going? How many people are there? Are they citizens? Are they not citizens? You need it for many reasons.” This is the opposite of what the administration claimed the reasoning for the question was in court, for they said it was to protect the VRA which is supposed to assist minorities voting rights.
ACLU voting rights project director Dale Ho also said last week that despite the court decision “…and despite DOJ’s repeated statements that the census questionnaire cannot be changed after June 30, the administration is now examining whether it can concoct a ‘new rationale’ for its citizenship question. The answer is no, it cannot — at least not a legal one,” Ho said. “Any attempt at an end run around the Supreme Court’s decision will be unsuccessful, and will be met swiftly in court.”
On June 27, 2019 the Supreme Court of the United States by a vote of 5 to 4, with Chief Justice John Roberts writing the majority decision, ruled the government cannot add the question of citizenship to the U.S. census. The court concluded the current explanation given for the reinstatement of the question is not a “genuine justification,” therefore, it cannot be added to the census unless the government is able to provide legitimate justification. Consequently, the court “affirmed in part and reversed in part” the decision of the U.S. District Court for the Southern District of New York (Opinion, 29).
According to the Secretary of Commerce, Wilbur Ross, the citizenship question was requested to be added on the census by the Department of Justice (DOJ) in order to enhance the data on “citizen voting-age population for purposes of enforcing the Voting Rights Act” (VRA) (Opinion, 3-4). Unfortunately, out of fear, many noncitizens would not reply to the census if a citizenship question were to be added. The issue is that nonresponse from a large number would result in a “less accurate count of the total population” (Opinion, 3). Additionally, “Several states with a disproportionate share of noncitizens, for example, anticipate losing a seat in Congress or qualifying for less federal funding if their populations are undercounted” (Opinion, 9). During discussions with the Census Bureau, the Secretary was provided with alternative ways to receive “improved citizenship data.” The Secretary rejected the Bureau’s proposal to solely use administrative records even though they believed they could estimate the citizenship of the 35 million not included. The Bureau not only believed it would turn out to be more accurate than the citizenship question, but also anticipated a “5.8% decline in response rates among noncitizen households if the citizenship question were reinstated” (Opinion 17-18). However, the Secretary felt as though the Bureau’s predictions were “inconclusive” (Opinion, 19).
During this case, it was the duty of the Supreme Court to determine “whether the Secretary violated the Enumeration Clause of the Constitution, the Census Act, or otherwise abused his discretion” (Opinion, 1). Under the Enumeration Clause, Congress has “virtually unlimited discretion in conducting the decennial ‘actual Enumeration,’ and Congress has ‘delegated its broad authority over the census to the Secretary” (Opinion, 11). Due to this, the court concluded the Secretary has the right to include a citizenship question on the census (Opinion, 13).
The District Court ruled that the Secretary violated two provisions of the Census Act (Opinion, 20). Provision §6(c), requires the Secretary to collect information without using “direct inquiries.” However, the Supreme Court held that the Secretary complied, because the Secretary had already determined the administrative records would not have provided the “more complete and accurate data that DOJ sought.” As for section §141(f ), this calls for the Secretary to divulge to Congress plans for the census. The District Court believe the Secretary violated this section by not referencing the citizenship question in his March 2017 report. The Supreme Court disagreed (Opinion, 22). Since the Secretary alerted Congress to the change he was going to make in March 2018 and provided an explanation, the Supreme Court determined Ross did not violate either these two provisions of the Census Act.
Overall, looking at the evidence, the Supreme Court deduced that it was not the request of the DOJ that can explain the reasoning behind the question (Opinion, 26). In fact, the Secretary of Commerce began looking into reinstating the question during his first week in office. Additionally, it is evident that “the VRA played an insignificant role in the decision making process” (Opinion, 25). As Justice Roberts states in the Opinion of the Court, “It is rare to review a record as extensive as the one before us when evaluating informal agency action— and it should be. But having done so for the sufficient reasons we have explained, we cannot ignore the disconnect between the decision made and the explanation given.” Moreover, Chief Justice Roberts refers to the Secretary’s reasonings as “more of a distraction,” and further explains, “The reasoned explanation requirement of administrative law, after all, is meant to ensure that agencies offer genuine justifications for important decisions, reasons that can be scrutinized by courts and the interested public. Accepting contrived reasons would defeat the purpose of the enterprise” (Opinion, 33).
This Supreme Court decision was not simple, nor without discord. Justices Alto, Thomas, Gorsuch, Kavanaugh, Breyer, Ginsburg, Sotomayor, and Kagan all concurred in part and dissented in part. Justice Alto believe it was never within the court’s jurisdiction to decide whether the Secretary’s actions were constitutional, (Opinion, 3). Justice Alto wrote, “If the Secretary violates the Constitution or any applicable Statutory provision related to the census, his action is reviewable. The Secretary is also accountable to Congress with respect to the administration of the census since he has that power only because Congress has found it appropriate to entrust it to him. And the Secretary is always answerable to the President, who is, in turn, accountable to the people” (Opinion 19-20).
Alternatively, Justice’s Thomas, Gorsuch, and Kavanaugh dissented, not because they do not believe it is not the court’s place to determine whether it is constitutional, but because they disagree with the decision that the Secretary’s decision was “arbitrary and capricious on the ground that its supporting rationale was ‘pretextual’” (Opinion, 6). These justices believe there was no evidence showing “bad faith or improper behavior.” Furthermore, they believe whether or not he had additional reasons for adding the citizenship question, there is still no evidence to “bad faith or improper behavior” (Opinion, 9).
Lastly, Justice’s Breyer, Ginsburg, Sotomayor, and Kagan concur, but dissented in part. They believe the Secretary’s decision was not only “pretextual,” but also “arbitrary and capricious and therefore violated the Administrative Procedure Act (APA)” (Opinion, 1). They believe the Secretary ignored several significant components when deciding to add the citizenship question (Opinion, 2). As Justice Breyer wrote, “The Secretary did not give adequate consideration to issues that should have been central to his judgment, such as the high likelihood of an undercount, the low likelihood that a question would yield more accurate citizenship data, and the apparent lack of any need for more accurate citizenship data to begin with. The Secretary’s failures in considering those critical issues make his decision unreasonable. They are the kinds of failures for which, in my view, the APA’s arbitrary and capricious provision was written” (Opinion, 23).