Argument analysis: Divided court seems ready to uphold citizenship question on 2020 census

[Elderberry]

SCOTUSblog by Amy Howe 4/23/2019

The Supreme Court heard oral argument this morning in the dispute over the Trump administration’s decision to include a question about citizenship on the 2020 census. The federal government says that the Department of Justice wants data about citizenship to better enforce federal voting rights laws. But the challengers in the case counter that asking about citizenship will lead to an inaccurate count, because households with undocumented or Hispanic residents may not respond. After roughly 80 minutes of often tense debate, the justices seemed divided along ideological lines, with the conservative justices appearing ready to uphold the use of the question.

Ross announced the decision to include the citizenship question last year. The question is not entirely new to the census: It was generally included on census forms from 1820 until 1950, while some households received forms that contained the question between 1960 and 2000.

But a group of state and local governments, along with several civil rights groups, went to federal court to challenge Ross’ decision. In January, the court ruled that the decision violated the federal law governing administrative agencies and barred the government from including the question on the upcoming census. The Supreme Court agreed to take up the case right away, without waiting for a federal appeals court to weigh in, to resolve the issue once and for all by June, when the government needs to start printing millions of census questionnaires.

Arguing for the federal government today, U.S. Solicitor General Noel Francisco began by stressing that the citizenship question has been asked on the census for nearly 200 years. But he was quickly interrupted by Justice Sonia Sotomayor, who pushed back. It hasn’t been included in the census sent to all households since 1950, she reminded Francisco, because every secretary of commerce and every statistician has recommended against asking it.

The other liberal justices then took turns with Sotomayor peppering Francisco with questions, often diving deep into the details of the case. Some justices focused on Ross’ decision to include the question even though the Census Bureau had told him that asking the question would lead to fewer responses and could make information about citizenship worse, rather than better.

Francisco responded that Ross had fully acknowledged both the advantages and disadvantages of asking the citizenship question on the 2020 census. The question before the court, he stressed, really boils down to whether Ross’ decision to bring back the citizenship question was reasonable – which it was.

More: https://www.scotusblog.com/2019/04/argument-analysis-divided-court-seems-ready-to-uphold-citizenship-question-on-2020-census/#more-285283

Argument transcript : https://www.supremecourt.gov/oral_arguments/argument_transcripts/2018/18-966_i4dj.pdf

[Elderberry]

NY Mag Intelligencer 4/23/2019

http://nymag.com/intelligencer/2019/04/scotus-telegraphs-approval-of-census-citizenship-question.html

Supreme Court Telegraphs Approval for Adding Citizenship Question to Census

Normally, Supreme Court–watchers are reticent about predicting decisions from oral arguments, particularly in complicated cases that are expected to divide the Court. But it seems that just about everyone who listened to today’s arguments in Department of Commerce v. New York, the case involving the Trump administration’s efforts to place a citizenship question in the 2020 Census, came away with a clear impression.

Amy Howe
‏ @AHoweBlogger

After 80 minutes of often tense oral arguments, #SCOTUS seems likely to divide 5-4 on ideological lines in challenge to decision to add citizenship question to 2020 census, with conservative justices likely to uphold the question
8:37 AM - 23 Apr 2019

Howe often writes for the authoritative SCOTUSblog, and isn’t one to jump to conclusions.

Perhaps the best-known Supreme Court commentator is NPR’s Nina Totenberg. She expressed no major doubts either:

Nina Totenberg
‏Verified account @NinaTotenberg
6h6 hours ago

At census args today, the justices sure looked like they had made up their minds and if so it’s 5-4 to uphold adding citizenship Q to the census form. #SCOTUS

Add the New York Times’ Adam Liptak to the chorus:

Adam Liptak
‏Verified account @adamliptak
6h6 hours ago

In Supreme Court arguments on adding a citizenship question to the census, all signs pointed to the usual 5-4 split, meaning that the court’s conservative majority is poised to allow the question.

The first analyses beyond Twitter reached the same conclusion, like this one from the Los Angeles Times’ David Savage:

    In a case with deep implications for California, Supreme Court justices on Tuesday appeared ready to uphold the Trump administration’s attempt to add a citizenship question to the 2020 census.

    The justices were sharply split along ideological lines, with the court’s conservatives clearly on the side of deferring to the administration.

The Court has been asked to assess both statutory and constitutional challenges (brought by a variety of states, cities, and civil-rights groups) to the Commerce Department’s decision to bring back a general citizenship question that hasn’t been used since 1950. Three district courts (in California, Maryland, and New York) ruled that Commerce Secretary Wilbur Ross’s rationale and procedures for this step violated the Administrative Procedures Act and the Census Act. (A California district court ruled in favor of a parallel challenge based on the argument that the administration’s approach violated a constitutional requirement for an exact “enumeration” of the population via the Census, and SCOTUS agreed to review that decision as well.)

At the administration’s request, SCOTUS took up this case on an expedited basis without the usual Court of Appeals review because of a June deadline for preparation of 2020 Census questions.

More at link above.

[Maj. Bill Martin]

The arguments in this case illustrated how some justices have completely lost all sense of judicial restraint.  Their argument basically amounts to "you haven't convinced us this is a good idea, so we don't want to permit it."  But whether or not something is a good idea is not the same as whether or not it is constitutional.

But even leaving the issue of restraint aside, the claim that there is no valid purpose for the question is simply asinine.  Congress and the President are charged by the Constitution with passing laws regarding the process for becoming a citizens, and regarding immigration.  The idea that how many citizens and non-citizens we already have isn't relevant to that is simply ludicrous.  Of course we'd want to know that.