Court Sends Census Question Back to Drawing Board

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By William Vogeler, Esq. on June 27, 2019 1:08 PM

The U.S. Supreme Court affirmed in part, reversed in part, and remanded a case about one census question, and it all goes to show that asking people about their citizenship is complicated.

In Department of Commerce v. New York, a unanimous panel affirmed that the Enumerations Clause permits the Secretary of Commerce to include in the census this question: "Are you a citizen of the United States?" Intended for the 2020 census, that question was the gist of the controversy spawning the litigation.

A divided court, however, reversed and remanded the case because it is not clear whether the question was included for an "arbitrary and capricious" purpose. That is more complicated.

'Arbitrary and Capricious?'

Before the justices took the case, Judge Jesse Furman ordered the government to remove the question from the census. He said it would dissuade people -- primarily Hispanic immigrants -- from participating in the census. He said Secretary of Commerce Wilbur Ross violated statutory law and his decision to include the citizenship question was "arbitrary and capricious."

The Supreme Court was not ready to go that far. The justices said Furman erred in ruling that the secretary violated the Census Act, but he was correct in demanding a better explanation from the secretary for including the question.

"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," the justices said.

Their ruling divided into multiple parts, however, with four concurring and dissenting opinions. In the end, it was a 5-4 decision. By remanding the case, the Supreme Court opened the door for the government to justify the question but did not close the door on throwing it out.

2020 Census?

On the last day of the term, it was notable that Roberts closed ranks with his liberal colleagues in the majority opinion. It was also a setback for President Trump, who said it "seems totally ridiculous" that the census cannot include the citizenship question.

"Can anyone really believe that as a great Country, we are not able the ask whether or not someone is a Citizen," he tweeted. "Only in America!?"

He said he wanted to delay the 2020 Census until the Supreme Court can resolve the issue.

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