Promoted from the diaries by streiff. Promotion does not imply endorsement.

Yesterday, the Supreme Court held oral argument in the case Department of Commerce vs. New York.  Our own front page writer, streiff, covered his take on the case.  There were three questions presented in this case, but first some background.  The case evolved almost immediately after the Department of Commerce which administers the census every ten years announced that they were going to include a question about citizenship on the census short form.  Every ten years, they mail out a long form to a certain number of households and a short form to all households.  Census takers generally follow up by visiting homes that fail to complete the census form.

The census is mandated by the Constitution as a means to determine representation in Congress.  When the decision was announced to include the question, several states, New York among them, went to court to block the inclusion of the question.  Hence, we have the first question in the case: did the US District Court err in blocking, or enjoining, the Commerce Department from including the question?  The state is arguing that the Commerce Secretary, and the lower court agreed, violated the Administrative Procedures Act.

Having determined the Department did, the next question was whether a court can require officials in the Commerce Department, up to an including the Secretary, to testify in a discovery procedure outside the administrative record in order to probe the mental processes of the decision maker?  These two questions go hand-in-hand and the second need not be answered if the Court determines the District Court erred.

During oral argument, there was some questioning of the process by which Secretary Wilbur Ross decided to include the question.  For example, Solicitor General Neal Francisco admitted that people within the Census Bureau thought there was no need for the question since they can extrapolate from other metrics- namely, the long form and the American Community Survey- that they can determine the citizen population.  However, it was also argued that this was based on statistical models that were not 100% accurate.  Further, for the APA to apply, the decision by the Commerce Secretary must be arbitrary and capricious meaning they overruled the evidence before them and that there may be another, more nefarious reason for the decision.

While it is true that statisticians within the Census Bureau are quite good at their job in developing models, they remain models at the end of the day.  The government is arguing that in order to get a more accurate count of the citizen population, the citizenship question on the form required of every household- not just those randomly chosen for the long form or the ACS- would be the best method to determine this.  They accurately pointed out that the question was included on census forms up until 1960 and even post-1960 on the long form and the ACS.

The argument of New York and others boils down to the belief that the Commerce Department is requiring this question to suppress minority populations, specifically Hispanic minorities where there is a greater chance that respondents to the census may be illegal.  There was a lot of talk about how this question on the long form and ACS may cause people not to accurately answer the census form, if they answer at all.  Their goals are obvious: keep things as they are now because it will not upset the enumeration cart and states with large illegal Hispanic populations (looking at you, California) will maintain their 53 representatives in the House.

And thus we come to question three: whether the inclusion of this question violates the enumeration clause.  It seems strange that from the first census to 1960, this was not a problem.  Only now that the illegal population has ballooned has it suddenly developed into a problem.  This is further made clear by the reason for the census- to determine representation in the House of Representatives.  In order to accurately draw congressional district lines, states are required to take into consideration the citizen voting age population (CVAP).  As noted by Francisco, inclusion of the question addresses the “C” in CVAP accurately.  One respondent in the case argued that for Voting Rights Act enforcement, accurate data is required for the “granular” aspects of redistricting.  What can be more “granular” and accurate than inclusion of the question about citizenship?

Instead, New York and other liberal states, along with their willing special interest group allies, would prefer the status quo which is decidedly less accurate and based on statistical models, not actual data points.  Further, in a previous Supreme Court case, they left open the possibility that states can draw at least state government level district lines based on citizen population, not overall population.  To do so could seriously alter the political landscape in states with large illegal populations like Texas, Arizona, and California.  BUT, that is only if those states so decide to go that route.  From a personal standpoint, this writer wishes states would do so since only citizens of this country are granted the right to vote.

Another consideration is that the census data is used for determining a host of programs that require federal funding from transportation projects to school lunch programs to Medicaid and others.  It is conceivable and even practical that the federal government can disengage the use of the census for these purposes from the Constitutional purpose of the census- namely, enumeration.  In fact, since non-citizens may not vote in elections (ha ha), it makes perfect sense to eliminate them most accurately through the census for enumeration purposes.

Perhaps if these special interest groups and these liberal states would better expend energy educating their hyphenated communities about the importance of completing the census form accurately and completely regardless of their citizenship status, this entire gross use of lawfare could be avoided.  The respondents in this case seem to believe that the Census Bureau is going to turn over information from the census to ICE or some such nonsense.

Near the end of the argument, Justice Ginsburg asked why Congress, knowing that this controversy was brewing, did not act.  They had in the past since they passed a law that the decennial census cannot inquire of one’s religion.  That question was never satisfactorily answered.  Instead, as Francisco noted, the law allows the Secretary of Commerce and the Census Bureau  wide latitude and discretion when it comes to the forms and questions used except with regard to religion.  Further, he noted that to accept New York’s overall argument would preclude the Census Bureau from asking a citizenship question on the long form or the ACS.  The response was: but we need that information to determine if inclusion on the short form alters responses.  What a line of bulls***.

Regarding the reticence by statisticians in the Census Bureau, they admit that no accurate model currently exists to gauge the citizen voting age population.  Instead, the Secretary was presented with a “give us some time, we’re working on it and will have it sometime soon” response.  That is about as ambiguous as one can get.

Gauging from the questions, as streiff accurately points out in his article, the liberals on the Court did their best to be propagandists for the Democratic Party, especially the wise Latina from New York.  Roberts seemed to grow tired of the “we know it suppresses minority responses because we say so” line of justification.  Gorsuch was perhaps the most skeptical of New York’s arguments as was Alito.  Kavanaugh noted that several other countries require an answer to a citizenship question on their census forms and that the UN even encourages it.  Of course, they tried to nuance their way out of it and noted they were unsure whether other countries have an Enumeration Clause.

A decision is expected in June and will likely be 5-4 along partisan lines.  Of course, predicting Court decisions is rife with qualifiers given the presence of John Roberts.

If the purpose of the Enumeration Clause is to determine as accurately as humanly possible the population of the country- legal and illegal- since the Clause itself mentions “persons,” not “citizens,” then inclusion of the question is the best way to get that answer.  Simply, this is misplaced fear on the part of liberal special interest groups and liberal states.  One has to wonder what they really fear- an accurate count of the illegal population?