CHN: Supreme Court Expands Focus of Census Citizenship Question Arguments

On Tuesday, April 23, the U.S. Supreme Court will hear arguments over whether the Trump Administration may include a citizenship question in the 2020 Census – and the case just got a little more complicated.

Originally, the Court’s focus was fairly narrow: Had Administration officials violated administrative procedures (and thus, federal law) in the way they sought to include the citizenship question? As reported in the January 22 Human Needs Report, a U.S. District Judge in New York ruled that, indeed they had. The ruling by U.S. District Judge Jesse Furman stated that the decision by Commerce Secretary Wilbur Ross to add the citizenship question to the 2020 Census was “unlawful” because of “a veritable smorgasbord of classic, clear-cut” violations of the Administrative Procedure Act, including cherry-picking evidence to support his choice.

On March 15, however, the Supreme Court expanded its focus. In an order, the Court announced that it will also examine whether the citizenship question violates the enumeration clause of the U.S. Constitution. That clause states, in part, “”Representatives….shall be apportioned among the several States . . . according to their respective Numbers….” In other words, Census counts and the resulting apportionment are expected to be based on real numbers. Critics of the citizenship question maintain that it will result in a lower (and thus, more inaccurate) count, because many people, particularly in immigrant communities, will not want to fill out the form.

The expanded focus by the U.S. Supreme Court is a direct result of a second federal court ruling, this one from earlier this month in California. In that case, U.S. District Judge Richard Seeborg wrote, “In short, the inclusion of the citizenship question on the 2020 Census threatens the very foundation of our democratic system – and does so based on a self-defeating rationale.” Seeborg agreed with the New York judge that the addition of the citizenship question violated the Administrative Procedure Act, but he went farther, finding that the question actually violates the U.S. Constitution.

And that is why the Supreme Court issued its new order and expanded the focus of its April 23 argument. As explains, U.S. Solicitor General Noel Francisco wrote to the Supreme Court and asked that it examine both issues: “The only way to finally resolve whether the federal government can bring back the citizenship question, the government stressed, is to have the justices take up the constitutional issue too: Otherwise, even if the Supreme Court were to agree with the federal government that the citizenship question does not violate federal administrative laws, lower courts could still rely on the enumeration clause to block the government from including it.” Francisco further noted that the deadline for finalizing the Census form is this June, and for that reason, the best course of action would be for the Court to consider both of the questions at issue.

For more information on the importance of a fair and accurate 2020 Census, see CHN’s Census page, and watch a recording of the webinar held in January by CHN and the Leadership Conference on Civil and Human Rights.