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Policy Summary
In March 2018, shortly after he was appointed Secretary of Commerce for the Department of Commerce, Wilbur Ross announced in an internal memorandum that he intended to reinstate a question on the upcoming 2020 national census regarding the citizenship status of each member residing in a household. A national census questionnaire had not asked the citizenship status question since 1950. The proposal was highly controversial and numerous lawsuits were filed throughout the country to block the question from appearing on the upcoming questionnaire. Two separate lawsuits were filed in federal district courts in the State of New York to block the question and later consolidated into a single case. The federal district court later requested additional materials because they deemed the information at hand was incomplete. After additional materials were submitted and a bench trial the federal district court ruled the Secretary’s action to reinstate the citizenship question arbitrary and capricious, based on a pretextual rationale and violated the Census Act. The case was appealed to the Court of Appeals for the Second Circuit but the case was eventually appealed directly to the U.S. Supreme Court before the Court of Appeals could hear the case. The Supreme Court accepted the case because of the looming deadline of June 2019 to begin printing and distributing questionnaires for the 2020 census.

On June 27, 2019 the Supreme Court handed down a decision which effectively banned the citizenship question for the 2020 census but remanded the case back to the lower court which leaves open the door for the citizenship inquiry to be added on a census questionnaire in the future. LEARN MORE

Analysis
The Supreme Court case Department of Commerce v. New York is a win for supporters of those who fought to keep a citizenship status question off the 2020 decennial census but the opinion only applies to the 2020 census. Because of the reasons laid out in the ruling, it is completely conceivable that a citizenship question could appear on the 2030 and 2040 censuses and beyond. Only the timing of the decision and the irrational approach undertaken by the Secretary worked to keep the citizenship question off the 2020 census.

In the majority opinion written by the Chief Justice, he writes that Secretary Ross’s decision to look into reinstating the citizenship question was not supported by the evidence in the record of “why” the Secretary wanted to do this. The rationale the Secretary gave appeared to be a “mismatch” with his eventual decision and appeared to be more of a “distraction” from other political reasons behind his rationale. The sole reason finally given by the Secretary was for better enforcement of the Voting Rights Act (VRA) but there were no indications he considered the VRA when he initially announced the proposal. Also, his interactions with other government agencies to gather citizenship data focused on other issues and made no mention of voting rights. Based on case law interpreting the Administrative Procedure Act (APA), agency decisions must “articulate a satisfactory explanation” which must also “include a rational connection between the facts found and the choices made.” Decisions must also be “within the bounds of reasoned decision-making.” What the Secretary gave for trying to add the citizenship question did not satisfy these standards because the evidence before him and the statements he made did not support his eventual course of action. Instead, in the words of the Chief Justice, his reasoning appeared contrived.

But even if this decision does not allow the question to be added for the 2020 census, the rest of the opinion makes clear that if a future Secretary or the Department of Commerce is able to marshal supporting evidence in favor of adding a citizenship question and can articulate it in a reasoned and logical way that there might not be anything to stop the question from being eventually added. The opinion notes that a citizenship question has not been on the census since 1950 but that it had been a regular feature of census questionnaires throughout the nineteenth century. It is very conceivable that supporters of the citizenship question for the 2030 census could well undertake a more organized approach with this court opinion as a guideline as to what to do and what not to do. The citizenship question has been struck from the 2020 questionnaire but this opinion only sets the stage for a possible and very likely addition of the citizenship question for the 2030 census and others to come in the coming decades. LEARN MORE, LEARN MORE

Engagement Resources:

This brief was compiled by Rod Maggay. If you have comments or want to add the name of your organization to this brief, please contact Rod@USResistnews.org.

Photo by unsplash-logoClaire Anderson

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