SCOTUSblog by Jennifer Nou 11/24/2020
The census saga continues. This time, however, the Trump administration is more truthful about its motivations. It wants to count immigrants who are in the country without authorization, not — it turns out — to enforce the Voting Rights Act, but rather to influence the reapportionment of legislative seats. Specifically, the government has issued a presidential memorandum to exclude these immigrants from the apportionment base, the state population counts used for reallocation. The case now before the Supreme Court raises important jurisdictional, statutory and constitutional arguments against the memorandum. By focusing only on the statutory claims, I will argue for an interpretation that subjects census-related policy decisions to more robust administrative process. Doing so, I hope, will help mitigate the extent to which the census is a means of political entrenchment.
The Census Act provides that the commerce secretary “shall … take a decennial census of population†in “such form and content as he may determine.†The act then requires the secretary to report to the president, for reapportionment purposes, a “tabulation of total population by States†based on the decennial census. The Reapportionment Act, in turn, specifies that the president “shall transmit†to Congress a “statement showing the whole number of persons in each State … as ascertained under the … decennial census of the population†using the “method of equal proportions.†Note that the relevant statutes explicitly delegate certain tasks to the commerce secretary, as opposed to the president. These tasks include taking the census, tabulating population counts by state, and then, of course, preparing the required report.
Under this scheme, the president’s interpretive authority over responsibilities explicitly delegated to the secretary is arguably supervisory, not directive. That is, the secretary is empowered to make his own legal determinations in which the president’s views are important to consider, but not necessarily determinative. Congress intended this understanding, it could be argued, as evidenced in its choice of statutory delegate: here, the secretary, not the president. Unsurprisingly, the government disagrees, arguing that presidential authority here is directive, that President Donald Trump makes the “ultimate†policy judgments — even before the secretary has concluded his statutory duties, as is the case here. The government contends that the president’s authority is directive after he receives the report, so there is no reason it should not be beforehand as well.
More:
https://www.scotusblog.com/2020/11/symposium-depoliticizing-the-census-through-administrative-process/
