SCOTUS Hears Oral Argument on Census Citizenship Question

Professor Ruthann Robson, City University of New York (CUNY) School of Law

The United States Supreme Court heard oral arguments  in Department of Commerce v. New York on the issue of whether the decision by Secretary of Commerce Wilbur Ross to include a citizenship question on the main census questionnaire for 2020 is lawful. The constitutional issues in the case include the standing of the challengers and the "actual enumeration" requirements in the Constitution, Art. I, § 2, cl. 3, and Amend. XIV, § 2.  The equal protection argument has seemingly receded into the background. Taking center stage are the nonconstitutional issues centering on the Administrative Procedure Act.

Recall that the case was originally before the Court on an order requiring Secretary Wilbur Ross to submit to a deposition.  However, Recall that in January in New York v. United States Department of Commerce, United States District Judge Jesse Furman decided the case without the Secretary's evidence, finding that without it there was no proof of discriminatory intent sufficient for an equal protection challenge.  Nevertheless, Judge Furman vacated and enjoined the implementation of the decision of Department of Commerce Secretary Wilbur Ross adding a citizenship question to the 2020 census questionnaire, holding that the Secretary's decision violated provisions of the APA, was arbitrary and capricious, and most unusually, pretextual.  

Recall also that in March California v. Ross, United States District Judge Richard Seeborg has found the decision of Secretary of Commerce Wilbur Ross to add a citizenship question to the 2020 census unlawful under the Administration Procedure Act and unconstitutional under the Enumeration Clause.

Arguing for the United States Department of Commerce, Solicitor General Noel Francisco was quickly interrupted by Justice Sotomayor in his very first description of the facts  — that "Secretary Ross reinstated a citizenship question that has been asked as part of the census in one form or another for nearly 200 years" — when she noted that the citizenship question was not part of the short survey that is at issue in the present case.  In short, Solicitor General Francisco's argument was that the Secretary has wide discretion to put whatever questions he'd like on the census for whatever reason.  While Justices Kavanaugh, Gorsuch, Alito, and Chief Justice Roberts seemed sympathetic to this wide discretion, especially in their subsequent questioning, Justices Sotomayor and Kagan characterized the Secretary's decision as a "solution in search of a problem." 

Justice Kagan: . . . [as] Justice Sotomayor was talking about was that it did really seem like the Secretary was shopping for a need. Goes to the Justice Department. Justice Department says we don't need anything. Goes to DHS. DHS says they don't need anything. Goes back to the Justice Department. Makes it clear that he's going to put in a call to the Attorney General. Finally, the Justice Department comes back to him and says: Okay, we can give you what you want.

So you can't read this record without sensing that this -- this need is a contrived one. Nobody had -- there have been lots of assistant attorney general in the Civil Rights Division that have never made a plea for this kind of data.

The Solicitor General of New York (and former Attorney General of New York) Barbara Underwood argued that there was nothing before the Secretary to support the notion that this would assist in making determinations under the Voting Rights Act. Justice Kavanaugh interestingly asked Underwood about United Nations recommendations for citizenship questions, a topic which Douglas Letter came back to during his argument, representing the United States House of Representatives as amicus curiae in support of New York and the other respondents, stating that other nations may not have an "actual enumeration" Clause in their constitutions, and stressing the importance of accurate census data to the House of Representatives given its purpose in representation.

Dale Ho, arguing for New York Immigration Coalition, discussed the intersection between the Voting Rights Act (VRA) and the census, explaining how the Census Bureau alters and approximates information.

Assuming the Court does not reach the constitutional issues, the heart of the case under the APA will be how much deference the Court is willing to afford to the Secretary.  This deference to the Secretary's discretion was interestingly implicated in the argument concerning the question of the Congressional role, with Douglas Letter pointing out that

The Secretary of Commerce has been called before Congress to explain what he did here, and Assistant Attorney General Gore . . .  They have been declining to answer. They're not giving Congress the information it requests because they say there's litigation going on. And, I repeat, this is a matter of public record.

Given recent other matters of public record in which government officials are refusing to come before Congress, more may be at stake in this case than the APA, including separation of powers issues.