The 2020 census can legally ask about respondents' citizenship status, the Supreme Court ruled Thursday, but the Department of Commerce's justification for adding the question was flimsy enough to require further review.
The ruling, which drew multiple concurrences and dissents, returns the case to a lower court for further review. This means that the Commerce Department may not be able to resolve the issue before the Census questionnaire is completed and distribution begins.
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The case, Department of Commerce v. New York, was initiated following the news that the Trump administration intended to add a question to the next decennial census asking respondents if they or their family members were citizens of the United States.
The question is not new, but was asked on every decennial census between 1820 and 1950. It also has appeared on the long-form census — a lengthier version sent to a statistically representative subset of households — for decades. It is further routinely asked on the annual American Community Survey and the monthly Current Population Survey, both federal surveys that track key statistics about the United States.
Its previous appearance on more limited surveys notwithstanding, the proposed expansion of the question prompted concerns that it would discourage responses, especially among America's estimated 10.5 million illegal immigrants. This could in turn reduce the number of respondents in some communities, districts, and states, thereby undercounting the population figures used to determine the allocation of seats in the House of Representative, federal funds, and other population-dependent issues.
A group of states led by New York asked the courts to block the addition of the census question. Lower courts sided with the states, which is how the case finally came in front of the Supremes in April. The resultant ruling — the last one of the Supreme Court's term — was authored by Chief Justice John Roberts speaking variously for five, seven, and all nine members of the court. It has essentially five major conclusions, each of which commanded a different majority, some from opposite wings of the court.
The first is that the states do have Article III standing to sue — on this, the justices agreed unanimously. From there, it gets messier. The court’s conservative wing came together to give five votes to conclusion two: The citizenship question is, in principle, permissible under the Constitution's Enumeration clause, which authorizes the decennial census. By extension, they ruled, because Congress "has delegated its broad authority over the census to the Secretary" of Commerce, Secretary Wilbur Ross has broad discretion to add almost any question he pleases.
Conclusion three is that Ross's actions are judicially reviewable under the Administrative Procedure Act, the broad law that governs executive rulemaking, and under the Census act. Administration lawyers had argued that Ross’s decisions were not reviewable. Seven of nine justices rejected this argument with Justice Samuel Alito dissenting; Justice Neal Gorsuch joined neither the majority nor the dissent on the question.
Conclusion four, again supported only by the conservatives, is that Ross’s decision to add the census question was "within the bounds of reasoned decisionmaking." The majority found that there was a rational relationship between the "evidence before him [Ross]" and the decision he eventually made. They also conclude that Ross did not violate certain requirements of the Census Act about how and when to collect statistics.
The last conclusion, which saw Roberts joining with the court's liberal wing, is the one that has many headlines calling the ruling a defeat for the Trump administration. Because Ross's decision is judicially reviewable, the Commerce Department must meet standards of judicial review, including being required to "disclose the basis" of its action. In previous hearings, they had proffered as their basis enforcement of the Voting Rights Act.
But in reviewing the "administrative record," Roberts and the four Democrat appointees concluded that "the decision to reinstate a citizenship question cannot be adequately explained in terms of DOJ's request for improved citizenship data to better enforce the VRA." They note that Ross apparently began taking steps to reintroduce the citizenship question a week after taking office, when there was no evidence that VRA enforcement was his motive. The VRA did not arise as a possible concern until Commerce contacted the Department of Justice’s Civil Rights Division, only after consulting a number of other departments.
"We are presented, in other words, with an explanation for agency action that is incongruent with what the record reveals about the agency’s priorities and decisionmaking process," Roberts wrote.
In light of this, the court ordered that the case return to lower court, for a more thorough briefing from Commerce on its basis for adding the citizenship question.
Justice Clarence Thomas rejected the concerns with Commerce's "incongruent" decision, arguing that because it was compliant with the law and reasoned, no further review was merited. Justice Stephen Breyer, joined by his liberal colleagues, contended that contra the Court's conclusion of its reasonableness, the addition of a citizenship question violated the Administrative Procedure Act’s requirement that a regulation not be "arbitrary and capricious." And Justice Alito, writing alone, argued that the Supreme Court did not even have authority to review the case under the APA to begin with.
But the important question now is: what will become of the actual citizenship question? In principle, the Court has found that it can be asked on the census. What is unclear is if this particular citizenship question can be asked by this particular Commerce Department with an adequate justification to pass review.
The outcome thus depends on what Commerce decides to do next. There is finite time before the 2020 census is finalized, although the states argued that Commerce could make things work as late as October of this year.
One of four outcomes is therefore possible. The Commerce Department may decline to further pursue the matter. It may also pursue the question, but be unable to get review by the lower or Supreme Court before the deadline passes. If it gets review, there are two obvious outcomes: either the courts conclude that its basis passes muster, or they do not.
Which of these comes to pass is a question that will doubtless preoccupy court-watchers in the coming months before the Census commences in April.