The Supreme Court has ruled the Commerce Department cannot include a citizenship question in the census – at least for now. In Department of Commerce et al. v. New York et al., the Court, in a 5-4 decision written by Chief Justice Roberts, said the question could not be in the census because the reason provided for its inclusion by Commerce Secretary Wilbur Ross was “contrived.” Immigration advocacy groups and congressional leaders are opposed to inclusion of this citizenship question, that is, asking citizenship status will cause a sizable drop in minority participation in the census. This, in turn, will affect representation of their interests in Congress because Congressional districts are allocated based on these census numbers.
Those opposed to inclusion of the citizenship question in the census say under-counting non-citizens is unconstitutional because the decennial census is intended to count the number of people living in the United States, regardless of immigration status or citizenship. However, the Trump administration takes the opposite view to argue there’s nothing wrong to ask this question. It’s not how they argued the case, but they instead opted to argue the question is needed to enforce the Voting Rights Act of 1965, a law that was passed to protect voting rights of African Americans in the South.
Chief Justice Roberts did not find this reason persuasive at all and he and the other justices in the majority said this reason was “pretext,” meaning, it was a decision intended to hide the real reason why inclusion of the question is sought.
“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,” the majority wrote.”
This was a major blow against the Trump administration on this issue, but the decision is only temporary because the Trump administration will have to provide additional information for the District Court to review before a final decision is made.
The reason it’s a major blow to the administration is because getting that additional information through the courts will take years, which means the question will not be on the next census, scheduled to take place next year.
President Donald Trump tweeted his disapproval of the decision from Japan where he was visiting at the time and said he was asking whether the census can be delayed until there is a “final and decisive decision . . .” adding, “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.” It now seems the president has altogether abandoned this strategy and apparently he now wishes to obtain the information through other means.
The Supreme Court’s decision is complex, though, with justices agreeing or disagreeing with different parts of the opinion, but ultimately the decision came down to the majority not believing what the administration was arguing.
For example, even though the Court held there was no violation of the Enumeration Clause of the U.S. Constitution and there was no violation of the Census Act, the Court nonetheless held that the Commerce Department’s decision was reviewable under the Administrative Procedures Act (APA).
The court concluded that for there to be meaningful review under the APA, the agency must “disclose the basis” of its decision, which they found lacking in this case.
Meanwhile, litigation on this census question is ongoing and new evidence has come into play. The Maryland district court will consider evidence from a now-deceased Republican operative showing that the Commerce Department planned to add the citizenship question because doing so would lead to an undercount that would advantage Republicans.
This Supreme Court decision comes at a time when the White House says there’s an immigration crisis at the Southern border with Mexico, which the president describes as “a flood of illegal immigration,” among other things.
Although Democrats initially dismissed the president’s claims as a politically manufactured crisis, they recently changed tune, even as they’re divided within the caucus and passed a border security bill favored by Republicans.
The president is expected to sign the bill into law soon but the debate on immigration policy will likely continue until a comprehensive immigration bill is passed.