Supreme Court Rejects Addition of Citizenship Question to Census

DEPARTMENT OF COMMERCE v. NEW YORK[1]

 

On June 27, 2019, the Supreme Court ruled that the Trump administration's decision to add a citizenship question to the U.S. census did not violate the Enumeration Clause or the Census Act, but the Commerce Secretary’s rationale for the decision was an unlawful pretext for the actual reason.

In March 2018, Secretary of Commerce Wilbur Ross, announced that he had decided to add a question about citizenship on the 2020 census questionnaire. The Secretary stated that he was acting at the request of the Department of Justice, which sought improved data about citizen voting-age population for the purposes of enforcing the Voting Rights Act’s ban on diluting the influence of minority voters by depriving them of single-member districts in which they could elect their preferred candidates

Civil actions were filed alleging the Secretary’s decision violated the Enumeration Clause of the Constitution and the requirements of the Administrative Procedure Act. Another group of plaintiffs asserted an equal protection claim.

The government argued that the plaintiffs lacked standing to pursue their claims. To have standing, a plaintiff must allege an injury that is concrete, particularized, and actual or imminent; fairly traceable to the defendant’s challenged behavior; and is likely to be redressed by a favorable ruling.

The Supreme Court affirmed the trial court’s conclusion that the plaintiffs had standing. The evidence established a sufficient likelihood that adding a citizenship question would result in noncitizen households responding to the census at lower rates than other groups. This would cause them to be undercounted and lead to many of the injuries they asserted.

The government also argued the Commerce department’s decision was nonreviewable. In some limited instances, final agency actions can be deemed nonreviewable and committed to the agency’s discretion. Rejecting the government’s argument that the Secretary’s decision to include a citizenship question was not reviewable under the Administrative Procedure Act, the Supreme Court held the decision was amenable to judicial review to ascertain compliance with the Census Act.

The evidence showed that the Secretary was determined to add a citizenship question from the time he entered office. He instructed his staff to make it happen and waited while Commerce officials explored whether another agency would request census-based citizenship data. Late in the course of this process, Commerce officials contacted the Attorney General to ask if the Justice Department would make the request using the Voting Rights Act as the rationale.

The majority concluded that the Secretary had made up his mind to include a citizenship question well before receiving Justice Department’s request, and did so for reasons unrelated to the Voting Rights Act. The decision to add a citizenship question could not be explained by the Justice Department’s request for improved citizenship data to better enforce the Voting Rights Act. This was a cynical and disingenuous pretext. There was a significant mismatch between the decision the Secretary made and the rationale provided.

The government claimed that Commerce was acting on a routine data request from another agency. Unlike a typical case in which an agency might have both stated and unstated reasons for a decision. In this case the Voting Rights rationale seemed to the majority to have been contrived. The Trump Administration wasn’t acting to protect the voting rights of minorities. It was seeking to intimidate and discourage noncitizen households from responding to Census questionnaires.

Reasoned decision making under the Administrative Procedure Act requires an explanation for agency’s action. The justification the government offered lacked credibility. What was provided in this case was more of a dishonest “distraction” than a legitimate explanation. The case was remanded for further proceedings consistent with Court’s opinion.

---

[1] Leland Ware, University of Delaware. Professor Ware’s book, “A Century of Segregation: Race, Class and Disadvantage” can be purchased from Amazon and other on-line outlets.