Symposium: Only in America

Hans von Spakovsky is the manager of the Election Law Reform Initiative and a senior legal fellow at the Meese Center for Legal and Judicial Studies at the Heritage Foundation.

Foreign observers must be shaking their heads in disbelief that adding a citizenship question to the U.S. census has proved so controversial as to result in litigation. Department of Commerce v. New York will be argued before the U.S. Supreme Court on April 23.

Predicting how the court will rule is always dicey. But given the broad authority of the secretary of the Department of Commerce under federal law to determine the questions on the census, and the extreme weakness of the legal arguments made by the lower-court judges to support their decisions against the government, it is highly probable that the challengers will lose and the citizenship question will appear on the census.

What is odd about the challenge by blue states and liberal advocacy organizations is that even the United Nations — an institution they often hold up as a model of progressivism that the United States should emulate — sides with the Trump administration on this issue. In its 2017 “Principles and Recommendations for Population and Housing Censuses,” the U.N. recommends that member countries ask census questions identifying both an individual’s country of birth and country of citizenship.

A Commerce Department memorandum on this subject dated March 26, 2018, notes that countries asking a citizenship question on their census include Australia, Canada, France, Germany, Indonesia, Ireland, Mexico, Spain and the United Kingdom.

Yet federal district courts in New York and California have enjoined the Commerce Department from reinstating a citizenship question on the census, ruling separately that to do so would violate the Administrative Procedure Act and the enumeration clause of the Constitution.

This litigation got to the Supreme Court in near-record time. On February 15, the justices granted the government’s request to review the January 15 New York decision, skipping the U.S. Court of Appeals for the 2nd Circuit in a very rare move. When another federal district court in California issued a March 6 injunction in California v. Ross, the Supreme Court agreed to also accept arguments on the second case, similarly skipping the U.S. Court of Appeals for the 9th Circuit.

This action by the Trump administration, and specifically by Commerce Secretary Wilbur Ross, has been portrayed as somehow unprecedented and nefarious. But the first citizenship question appeared on the 1820 census after being recommended by the notoriously conservative President Thomas Jefferson. The question has been consistently on the census form ever since. In 1950, the Census Bureau switched to sending out two census forms, the short form and the long form. Most Americans received the short form, but one in six households received the long form. The long form contained a citizenship question and over 50 other questions.

After the 2000 census, the Commerce Department ended the use of the long form. But in 2005, as a substitute, it started sending out another census form — christened the American Community Survey — on a yearly basis to about 3.5 million households. The ACS has many more, and more intrusive, questions than the regular census form, including a citizenship question.

It is important to note that the Trump administration announced it was taking the ACS citizenship question and reinstating it on the regular census form. That question does not inquire about legal status; it simply asks if the respondent is a U.S. citizen.

Why transfer the ACS citizenship question back to the regular census form? The Commerce Department’s March 26 memorandum cites the major reason as being the Department of Justice’s need for better information to enforce the Voting Rights Act. As a former DOJ lawyer, I can confirm that citizenship population data is essential to fashioning remedies for Section 2 violations in vote-dilution cases, especially cases filed on behalf of Hispanics. According to DOJ, “the current data collected under the ACS are insufficient in scope, detail, and certainty.”

The lower-court opinions spent hundreds of pages trying to justify their findings against the government, even though the legal issues here are very simple. Article I, Section 2, Clause 3 of the Constitution specifies that an “actual Enumeration” shall be done every 10 years “in such manner as [Congress] shall by Law direct.” By law, 13 U.S.C. §141(a), Congress has delegated to the Commerce secretary the authority to conduct the decennial enumeration “in such form and content as he may determine” and authorizes him “to obtain such other census information as necessary.” Thus, Congress gave the secretary almost unlimited authority to conduct the enumeration required by the Constitution — what we call the census.

The government in its brief argues, quite correctly, that the lower court erred in finding that the challengers even had standing to sue. The district court found standing based on four supposed injuries: diminishment of political representation, loss of government funding, harm to the accuracy of census data and diversion of resources. But all of these “injuries” would “not occur if everyone who receives the census form fully and truthfully fills it out.” In other words, the injuries will happen only if “in light of the citizenship question’s mere presence, significant numbers of people refuse to return the census form or falsely underreport the number of people in their households.”

As the government points out, not completing a census form at all or not answering it truthfully violates federal law. And the Census Bureau regularly engages in extensive follow-up efforts with households that don’t return their census forms. In other words, the alleged injuries that give the challengers standing would be “the result of the independent action of some third party not before the court” in violating federal law and “therefore insufficient to support standing” under Supreme Court precedent.

In any event, the Commerce Department pointed out that there is no empirical evidence showing that a citizenship question will have an impact on response rates. In fact, the nonresponse data on the citizenship question on the ACS shows that it was “comparable to nonresponse rates for other questions” such as educational attainment and marriage status. As the department said in its memorandum, “even if there is some impact on responses, the value of more complete and accurate data derived from surveying the entire population [instead of just a small portion as the ACS does] outweighs such concerns.”

The government also argues that the secretary’s decision is not subject to judicial review because under the APA’s own terms, judicial review is barred for any action that “is committed to agency discretion by law.” Action is committed to agency discretion when the governing “statutes are drawn in such broad terms that in a given case there is no law to apply.”

In a convincing argument that the Supreme Court will have a hard time disputing, the government says that “perfectly describes this case.” According to the solicitor general’s brief, “The Constitution ‘vests Congress with virtually unlimited discretion in conducting’ the decennial census, and Congress in turn ‘has delegated its constitutional authority over the census’ to the Secretary,” citing Wisconsin v. City of New York.

Thus, the government argues, Ross “possesses the same broad discretion that the Constitution confers on Congress. And neither the Constitution nor the Census Act provides any standard by which to judge the lawfulness of including (or excluding) a given question on the census form.” That very same reasoning also shows why the district court’s opinion in the California case that a citizenship question is unconstitutional also fails, despite the amount of verbiage the judge applied to try to justify his injunction.

The New York district court also found that the secretary’s reliance on the Justice Department’s need for more accurate citizenship population data was “pretextual.” But the court did not identify what the supposed “real reason” was for the secretary’s decision to reinstate the citizenship question.

The federal government argues that this violates “fundamental principles governing APA review of agency action.” Supreme Court precedent says courts are supposed to focus only on the “contemporaneous explanation of the agency decision”; “judicial inquiries into legislative or executive motivation represent a substantial intrusion into the workings of other branches of government.” Ross’ decision was supported by the administrative record and “agency action does not fail APA review merely because, as is often the case, the agency decisionmaker had unstated reasons for supporting a policy decision in addition to a stated reason that is both rational and supported by the record.”

The substantive issue in this case is, of course, the most important one. But a side issue before the Supreme Court is the New York district court order compelling the testimony of Wilbur Ross. The government argues that this violates the general rule, again based on Supreme Court precedent, that “the focal point for judicial review should be the administrative record already in existence, not some new record made initially in the reviewing court.” There is only a narrow exception if there is a strong showing of “bad faith or improper behavior” by the agency, and there was no such showing here.

Frankly, I will be surprised if the Supreme Court does not dissolve the injunctions and find for the government. The Constitution gives Congress almost unlimited discretion to conduct the census, and Congress has delegated that authority to the secretary of Commerce. Given the long historical precedent of including a citizenship question on the census up until the present day on the ACS, it becomes hard to conceive of the court’s reaching any conclusion other than that the executive branch acted fully within its authority to determine the “form and content” of the “Enumeration.”