Symposium: The enumeration clause and Census Act provide important reviewable constraints on the conduct of the decennial census — and Secretary Ross violated both

Mary McCord serves as Senior Litigator at the Institute for Constitutional Advocacy and Protection and Visiting Professor of Law at Georgetown University Law Center. She is co-counsel on an amicus brief for the U.S. House of Representatives in support of the respondents in Department of Commerce v. New York.

The “enumeration clause” at the heart of the upcoming argument in Department of Commerce v. New York may not appear terribly enlightening on its own, but its importance as a vital cornerstone of our nation’s democratic institutions, and in particular the House of Representatives, is clear from its placement in Article 1, Section 2:

Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons. The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct. The Number of Representatives shall not exceed one for every thirty Thousand, but each State shall have at Least one Representative.

Since the Constitution’s ratification, of course, Section 2 has been modified by both the 13th Amendment, abolishing slavery, and the 14th Amendment, which provides that representation will be determined based on the “whole number of persons in each state.” Merriam-Webster’s dictionary defines “enumeration” as “the act or process of counting something or a count made of something.” Thus, it would seem uncontroversial that the enumeration clause requires the decennial census to be, to the greatest extent possible, an “actual Enumeration” — that is, a full count of each state’s inhabitants. Based on this count, according to the Constitution, “Representatives shall be apportioned,” thus also triggering the apportionment of Electoral College seats (under Article II, Section 1, “equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress”). And today the decennial census is used for much more, including drawing lines for congressional and state legislative seats and distributing billions of dollars in federal aid. But its core purpose cannot be ignored: The Framers sought to ensure a process that, in allocating representatives among the states, would not be subject to political abuse or manipulation.

The key question now before the Supreme Court, therefore, is whether Secretary of Commerce Wilbur Ross’ decision to add a citizenship question to the 2020 decennial census can be squared with the Constitution’s command or the authority that Congress has delegated to the secretary under the Census Act to carry out the census. That act, of course, cannot delegate more than the Constitution allows, and the enumeration clause is itself the most significant constraint on the secretary’s conduct of the decennial census. But Congress did more to restrain the secretary; it included in the Census Act specific requirements to advance the goal of achieving an actual enumeration of the U.S. population, and, to ensure that it could fulfill its constitutional role, Congress required timely notification by the secretary of all subjects and questions he intends to include on the decennial census.

These limitations are not toothless. Although the secretary would like there to be no judicial review of his decision to add a citizenship question to the decennial census, the presumption when Congress delegates authority is that agency action will be judicially reviewable. The secretary attempts to avoid this presumption by arguing that the authority granted to Congress under the enumeration clause is “virtually unlimited” and therefore so is its delegation to the secretary — making his actions unreviewable. But this argument fails to recognize that, even assuming the secretary’s discretion is commensurate with that of Congress, the enumeration clause itself requires the census to be administered in a way that “bear[s] … a reasonable relationship to the accomplishment of an actual enumeration of the population,” as the Supreme Court instructed in Wisconsin v. City of New York. Were this otherwise, and were judicial review unavailable, there would be little to stop a politically motivated secretary from fashioning a questionnaire designed to discourage participation by certain segments of the population.

It’s no answer that Congress could pass legislation to prevent the secretary from including a subject or question on the census that it finds contrary to the purpose of the census or otherwise objectionable. Administrative action is routinely subject to conceivable congressional intervention by statute, but such a possibility does not preclude judicial review of agency action that exceeds delegated authority or is otherwise arbitrary and capricious.

Indeed, Congress has sought to ensure that the secretary’s exercise of discretion when conducting the decennial census is always aimed at producing an “actual Enumeration” by including restrictions on how the secretary can gather data and by requiring advance notification of the subjects and questions the secretary intends to include. The constitutionally required decennial census is, after all, just one of a variety of statistical collections, surveys and censuses authorized by the Census Act. Thus, Section 6(c) of the Census Act requires the secretary to acquire statistics and data “pertinent” to the work provided for under the act from other federal departments and agencies, or from the states, “to the maximum extent possible and consistent with the kind, timeliness, quality, and scope of statistics required … instead of conducting direct inquiries.” Assuming for present purposes that citizenship data may be acquired under the provision of the Census Act that permits the secretary, when conducting the decennial census, to “obtain such other census information as necessary,” Section 6(c) nevertheless requires the secretary to obtain that data from other administrative records unless “direct inquiries,” i.e., direct questions, would be superior.

Section 6(c) is a substantive limitation, and it is directed at ensuring that no “direct inquiries” disrupt the fundamental and constitutionally mandated goal of the decennial census: an actual enumeration of the whole population of the United States. If the citizenship question would interfere with an actual enumeration by significantly reducing self-response rates, particularly among noncitizen households — as all of the evidence suggests — then its inclusion for no compelling governmental purpose would run afoul of the enumeration clause. And if citizenship data of a type and quality needed for the enforcement of Section 2 of the Voting Rights Act by the Department of Justice (the purported reason given by the secretary for adding the question) can be obtained from administrative sources — as the existing record also establishes — then inclusion of the citizenship question by “direct inquiry” runs afoul of the Census Act. There is nothing unreviewable about these questions.

Recognizing that limitations like Section 6(c) might be inadequate to ensure that the secretary’s discretion is not misused, Congress also included in the Census Act provisions requiring advance notice — in years, not days — of first the subjects, and later the questions, that the secretary intends to include in the decennial census. And importantly, Congress mandated that, if after the secretary gives the required notice, he “finds new circumstances exist” that necessitate any new subjects or questions, he must provide a report to Congress explaining the proposed modifications. But that did not happen here.

Again, the secretary would like noncompliance with this requirement to be nonreviewable, but that would be tantamount to giving him carte blanche to ignore Congress’ clear mandate and rewrite the census questions just before the census goes to print, all without consequence. The attempt to insulate the secretary’s exercise of discretion from judicial review based on the conceivable possibility of congressional intervention — while at the same time arguing there is no consequence to failing to comply with the very requirements that would permit congressional oversight — is unpersuasive.

Much rests on the Supreme Court’s decision in Department of Commerce v. New York. Our democratic institutions depend on an actual enumeration of the whole population of the United States as required by the Constitution. The court should not shirk its responsibility to review the merits of this case. Moreover, the court should hold that the secretary’s addition of the citizenship question to the 2020 census violated the constitutional and statutory constraints designed to ensure, to the greatest extent possible, an “actual Enumeration” of the country’s population.