Supreme Court Makes Census Citizenship Question a Timing Issue

On Thursday, the Supreme Court issued its ruling on whether the Trump administration can include a question about citizenship on the census form. There was good news and bad news included in the decision.

The bad news is that a majority on the court said that the Department of Commerce was within its rights to include the question. Here is how Kevin Russell summarized.

In rulings that favor the Government, the Court holds: (1) the Enumeration clause permits a citizenship question; (2) the Secretary’s decision is reviewable under the APA; (3) adding the citizenship question was supported by substantial evidence; (4) adding the question did not violate the two provisions of the Census Act New York has cited.

The good news came from number two cited above. Administrative decisions like this are subject to the rules of the Administrative Procedures Act (APA). The applicable section says that, in order for the courts to enforce a rule, it cannot be based on arguments that are “arbitrary or capricious.” You might remember that the argument made by the Commerce Department for inclusion of the citizenship question was that it was necessary to enforce the Voting Rights Act. The Court ruled that explanation to be “pretextual,” the legal term for a lie.

Pretext: The reasons assigned to justify an act, which have only the appearance of truth, and which are without foundation; or which if true are not the true reasons for such act. Vattel, liv. 3, c. 3, 32.

Given that, the Court remanded the case back to the lower courts, which means that the Trump administration will be given another chance to make a better argument. That presents two roadblocks Trump will have to overcome.

Since the Supreme Court heard arguments in this case, a lot of evidence has surfaced about the true reason for the administration’s desire to include a citizenship question on the census. Following the death of the most prominent Republican redistricting consultant in recent decades, Thomas Hofeller, documents were discovered showing that he had personally pushed the GOP to put a citizenship question on the census because gerrymandering districts based on adult citizens would let them further rig the maps against both Democrats and people of color. The Commerce Department now faces the daunting task of attempting to craft a justification that elides that evidence.

It is worth noting that this is at least the second time that courts have ruled against the Trump administration based on the APA’s standard that their arguments not be “arbitrary or capricious.” Federal courts cited the same issue with their attempts to terminate DACA. Competency in crafting sound legal arguments is obviously not this administration’s strong suit.

The other roadblock this ruling places on the administration is one of timing. The Commerce Department had initially claimed that census forms would need to go to the printer by the end of June, but a Census Bureau official testified that by tapping “extraordinary resources” the deadline could be pushed back as late as October 31.

The administration’s attempt to include a citizenship question on the 2020 census was dealt a significant blow by the Supreme Court on Thursday, but it fell short of a death blow. The question now becomes one of timing.

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Nancy LeTourneau

Nancy LeTourneau is a contributing writer for the Washington Monthly. Follow her on Twitter @Smartypants60.