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Policy Summary
In March 2018 Secretary of Commerce Wilbur Ross announced in an internal memorandum that he intended to reinstate a citizenship question on the upcoming 2020 national census. A national census questionnaire had not asked the citizenship status question since 1950. After Secretary Ross announced his intention 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 that were later consolidated into a single case. The federal district court later requested additional materials because they thought the initial evidence incomplete. Additional materials were submitted and at the 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 in violation of 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 deadline of June 2019 to begin printing and mailing questionnaires for the 2020 census.

On June 27, 2019 the Supreme Court handed down a decision that effectively banned the citizenship question for the 2020 census but ended up remanding the case back to the lower court which left open the door for the citizenship inquiry to be added on a census questionnaire in the future. However, President Trump has made it clear that he still wants to try to add the question even though the census questionnaire has begun to be printed. The week after the Supreme Court decision, President Trump floated several ideas to try and add the citizenship question in a rushed manner. However, On July 11, 2019 President Trump announced that he would pursue other options to gather citizenship status information from persons residing in the United States instead of trying to gather that information from a question on the 2020 national census questionnaire. LEARN MORE, LEARN MORE

Analysis
After the U.S. Supreme Court issued its decision blocking the citizenship question from being added to the 2020 census questionnaire the issue was thought to be over. However, President Trump wanted to continue the fight for the question. Due to the timeline of having to print the questionnaire for 327 million people, President Trump’s decision to try and continue the fight was sure to cause complications – due to the speed of the U.S. court system (there are still numerous cases in the states challenging President Trump’s attempt to add the question with the two of the most notable in Maryland and New York), the desire to try to reach every citizen/household before the end of 2020 and the possibility of having a uniform census questionnaire.

The question became so important to the President that he even tried to float some skeptical ideas that were likely to be declared unconstitutional. President Trump’s first proposal after being thwarted by the Supreme Court decision was to try to delay the 2020 census. However, the U.S. Constitution requires that a census be taken every ten years in order to allocate U.S. Representatives to each state according to the population of each state. By trying to delay the decennial census for a minor question, President Trump would have explicitly violated the U.S. Constitution and thrown the U.S. Government into a chaotic state.

President Trump’s other proposal was to try to add the citizenship question by executive order. This would also have been a violation of the U.S. Constitution since the same Article 1, § 2 requires the census to occur “in such Manner as they shall by Law direct.” What this means is that Congress decides the laws that dictate how the census should be carried out while the President directs the activities to implement the laws. By threatening to use an executive order that had not been approved by Congress in a statute would have been a violation of the separation of powers principle. The kind of act that President Trump threatened to do would have been another way for him to try and get his way by going around the powers of Congress, which is without a doubt prohibited by the U.S. Constitution.

With President Trump’s announcement on July 11th the issue of foregoing adding the citizenship question on the national census and the constitutional complexities that that would have entailed now appears to have been put to rest. But things with President Trump are never so simple. While the 2020 census can now proceed, President Trump’s directive to gather citizenship info through other means and Attorney General William Barr’s curious statement that future congressional apportionment only applies to citizens have no doubt set the stage for a number of new battles to be fought over the significance and future role of illegal immigrants and illegal aliens in American society. 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 Arnaud Jaegers

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