Census question on citizenship denied, but Supreme Court leaves door open

WASHINGTON, D.C.—A divided Supreme Court ruled an attempt to ask future respondents of the 2020 Census about their citizenship status was merely a pretext and would not be allowed.

            Chief Justice John Roberts in joined the court’s four liberal judges in ruling the Trump administration didn’t provide enough evidence to justify a citizenship question on the 2020 Census. Pres. Donald J. Trump and the Department of Commerce, however, haven’t lost entirely, as the administration was given until the end of the month to try to reframe the need for a citizenship question on the next Census. The bare majority ruling was handed down on June 27 - and the end of June falls on a Sunday.

            Amy Howe, a reporter who provided an analysis of the Supreme Court opinion on SCOTUSblog, explained by the majority of justices ultimately decided the citizenship question was a pretext.

            “The court today [June 27] explained that the district court had overturned [Commerce Secretary] Ross’ decision to add the citizenship question for two reasons. The first is that it wasn’t supported by the evidence before Ross, because the Census Bureau had recommended that the citizenship data be gathered from administrative records instead,” Howe wrote. “But neither approach was perfect, Roberts concluded, so it was reasonable for Ross to decide to use the citizenship question instead of the administrative records. And it was also reasonable for him to decide that it would be worth it to include the citizenship question even though it might result in a lower response rate from households with residents who are not U.S. citizens.

            “But the district court had also ruled that Ross’ rationale for including the citizenship question – that the Department of Justice had asked for the data to better enforce federal voting-rights laws – was a pretext for its actual reasoning, and here the court agreed,” she continued.

Image courtesy U.S. Census Bureau

Image courtesy U.S. Census Bureau

            The majority and minority opinions both focused on whether Wilbur Ross, the Secretary of Commerce, acted within his discretion in deciding to add a citizenship question on the 2020 Census.

            “At the heart of this suit is [the] claim that the Secretary abused his discretion in deciding to reinstate a citizenship question,” Roberts said in the majority opinion.

            Ross, according to Roberts and his majority bloc, already made up his mind to include a citizenship question on the Census - hence acting outside the scope of his discretion.

            “Evidence showed that the Secretary was determined to reinstate a citizenship question from the time he entered office; instructed his staff to make it happen; waited while Commerce officials explored whether another agency would request census-based citizenship data; subsequently contacted the Attorney General himself to ask if [Department of Justice] would make the request; and adopted the Voting Rights Act rationale late in the process,” Roberts wrote.

            “In the District Court’s view, this evidence established that the Secretary had made up his mind to reinstate a citizenship question ‘well before’ receiving [Department of Justice]’s request, and did so for reasons unknown but unrelated to the [Voting Rights Act],” Roberts continued.

            Roberts went on to explain why there was opposition to having a citizenship question on the Census.

            “ Respondents assert a number of injuries – diminishment of political representation, loss of federal funds, degradation of census data, and diversion of resources – all of which turn on their expectation that reinstating a citizenship question will depress the census response rate and lead to an inaccurate population count,” Roberts wrote. “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.”

            Justices Clarence Thomas and Samuel Alito filed opinions where they concurred in part and dissented in part.

            Alito stated the Department of Commerce ultimately had the discretion to include the citizenship question on the 2020 Census, and the department’s decision to do so was not a challengeable action.

            Thomas, meanwhile, explained the court’s only role is to interpret whether the Department of Commerce, in deciding to add a citizenship question to the upcoming population count, acted illegally. His dissenting opinion was based upon federal law granting the Secretary of Commerce wide discretion to conduct a decennial census.

            “As the Court explains, federal law directs the Secretary of Commerce to “take a decennial census,” Thomas wrote. “The discretion afforded the Secretary is extremely broad. Subject only to constitutional limitations and a handful of inapposite statutory requirements, the Secretary is expressly authorized to ‘determine the inquiries’ on the census questionnaire and to conduct the census ‘in such form and content as he may determine.’”

            Roberts, in his majority opinion, disagreed with Thomas’ argument, stating the secretary’s discretion, while broad, is not “unbounded.”

History Lesson

            The first-ever U.S. Census was conducted in 1790. We have had 23 formal population counts between 1790 and 2010 – and all but one between 1820 and 2000, according the court’s June 27 ruling, “asked at least some of the population about their citizenship or place of birth.”

            “The question was asked of all households until 1950, and was asked of a fraction of the population on an alternative long-form questionnaire between 1960 and 2000,” the SCOTUS ruling stated. “In 2010, the citizenship question was moved from the census to the American Community Survey, which is sent each year to a small sample of households.”

            Ross issued a memo in March 2018 to reintroduce the citizenship question within the 2020 Census.

            “The Secretary’s memo explained that the Census Bureau initially analyzed, and the Secretary considered, three possible courses of action before he chose a fourth option that combined two of the proposed options: reinstate a citizenship question on the decennial census, and use administrative records from other agencies, e.g., the Social Security Administration, to provide additional citizenship data.”

Trump’s Tweet

            Trump tweeted his opinion about the Supreme Court’s ruling on the citizenship question a little after 1:30 p.m. (EST).

            “Seems totally ridiculous that our government, and indeed Country, cannot ask a basic question of Citizenship in a very expensive, detailed and important Census, in this case for 2020. 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,” the president wrote in his tweet. “Can anyone really believe that as a great Country, we are not able the ask whether or not someone is a Citizen. Only in America!”

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