SCOTUS, Citizenship and the Census

An interesting question has arisen as to whether the SCOTUS has jurisdiction to rule on the census form issue. Congress is given the responsibility for the Census in the Constitution. In 1902 it created the Census Bureau that was placed under the Commerce Department in 1903. Since the Commerce Department resides in the Executive Branch, it has been argued that as a function of the Executive Branch, it is solely within the purview of the President to decide what information is to be collected. Others would argue that since the responsibility of Congress which then delegated that power, any conflict between the two would have to be decided by the third branch, SCOTUS. Ironically, in that 5-4 decision the court ruled that the Executive had the power to decide the content but it had to have valid reasons for doing so. Decisions needed “genuine justifications for important decisions, reasons that can be scrutinized by courts and the interested public,” Roberts wrote. “Accepting contrived reasons would defeat the purpose of the enterprise. If judicial review is to be more than an empty ritual, it must demand something better than the explanation offered for the action taken in this case.” A larger issue is whether the courts can force the president to adhere to the procedures outlined in the Administrative Procedures Act. Then again, the Constitution gives Congress the power to decide on the jurisdiction of SCOTUS. (See Article III. Just how that power is applied or defined has been argued many times.)

Roberts had made it clear in the first part of his decision that the Commerce Secretary had the power to determine the content of the questionnaire, where the four justices in the minority disagreed was in his questioning of the motives of the decision. “For the first time ever, the Court invalidates an agency action solely because it questions the sincerity of the agency’s otherwise adequate rationale,” Thomas wrote. “Echoing the din of suspicion and distrust that seems to typify modern discourse, the court declares the secretary’s memorandum ‘pretextual.’ ”

Alito argued the jurisdiction point of view, “To put the point bluntly, the Federal Judiciary has no authority to stick its nose into the question [of] whether it is good policy to include a citizenship question on the census or whether the reasons given by Secretary Ross for that decision were his only reasons or his real reasons,” he wrote, arguing for Chevron Deference (although I doubt he would see it that way) (“Chevron deference, or Chevron doctrine, is an administrative law principle that compels federal courts to defer to a federal agency's interpretation of an ambiguous or unclear statute that Congress delegated to the agency to administer.”) The liberals on the Court argued adding the question would result in less accuracy. So Roberts’ reasoning was unique.

The question itself would seem to be uncontroversial. It was on most census forms (sometimes only on the long one, other times on the short form) until 2010 when Obama removed the long form thus eliminating the question.

I guess I'm puzzled by all the fuss which I believe to be based on false assumptions. The citizenship question used to be on the census questionnaire. Wouldn't it be useful to know how many non-citizens there are? They deserve representation but non-citizens, be they immigrants or otherwise, can't vote anyway, so how would non-citizens affect the outcome of any federal election? I doubt if there is any evidence showing that adding it to the questionnaire as a way of increasing Republicans is correct, although the under-countof perhaps 8 million -- if the Census Bureau is correct -- *might* (I emphasize, might) result in less population for traditionally Democratic areas. If everyone is counted in a district it would possibly change district boundaries, but how does that necessarily translate into benefiting either party? Conversely, I doubt the charge that "immigrants" (the issue should be citizen v non-citizen, not immigrant) would be reluctant to indicate whether they are, or are not citizens, would affect their completion of the form which is required under federal law. Legal immigrants who are non-citizens would have no reason to not complete the form.

Fact is there are millions of immigrants who are legal residents, and have every right to be here, but who, for whatever reason, have not chosen to become citizens. The purpose of the census is to count the number of people in the U.S. for the purposes of apportionment. (“Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed.”) Personally, I think it would be very useful to know how many are citizens, how many are legal residents, and how many are undocumented aliens (who may have children who are citizens.) Both parties are taking ideological positions that may be based on false assumptions, i.e. that the presence or absence of the citizenship question will benefit or hinder them. I don’t think the answer is that clear. To fall back on what the Constitution says, however, it’s critical that *everyone* be counted no matter their status. That’s what it says. That said, it seems to me the Constitution says plainly that apportionment is to be based on a count of ALL people (except non-taxed Indians, of course). The Census Bureau should be doing everything in its power to make an accurate count. I note that the concept of citizenship didn’t even appear in the Constitution until the 14th Amendment when it was added to make sure that freed slaves were to be accorded the full rights of citizenship, those “Privileges or Immunities.”. (Not women, though.)