Supreme Court: No census citizenship question for now, need clarified agency explanation
“In these unusual circumstances, the District Court was warranted in remanding to the agency, and we affirm that disposition.”
In a complicated ruling, the Supreme Court substantially upheld the inclusion of a census question regarding citizenship, but procedurally held that more inquiry was needed into C0mmerce Dept. reasoning in seeking to add the question.
So the bottom line is that there might be a citizenship question, but it’s unclear if there is time to get it resolved under deadlines for printing census forms.
The Syllabus (which is not part of the official Opinion) described the complicated breakdown by Justice:
ROBERTS, C. J., delivered the opinion for a unanimous Court with respect to Parts I and II, and the opinion of the Court with respect to Parts III, IV–B, and IV–C, in which THOMAS, ALITO, GORSUCH, and KAVANAUGH, JJ., joined; with respect to Part IV–A, in which THOMAS, GINSBURG, BREYER, SOTOMAYOR, KAGAN, and KAVANAUGH, JJ., joined; and with respect to Part V, in which GINSBURG, BREYER, SOTOMAYOR, and KAGAN, JJ., joined. THOMAS, J., filed an opinion concurring in part
and dissenting in part, in which GORSUCH and KAVANAUGH, JJ., joined. BREYER, J., filed an opinion concurring in part and dissenting in part, in which GINSBURG, SOTOMAYOR, and KAGAN, JJ., joined. ALITO, J., filed an opinion concurring in part and dissenting in part.
Some key portions of the majority opinion:
The Secretary justifiably found the Bureau’s analysis inconclusive. Weighing that uncertainty against the value of obtaining more complete and accurate citizenship data, he determined that reinstating a citizenship question was worth the risk of a potentially lower response rate. That decision was reasonable and reasonably explained, particularly in light of the long history of the citizenship question on the census
* * *
We now consider the District Court’s determination that the Secretary’s decision must be set aside because it rested on a pretextual basis, which the Government conceded below would warrant a remand to the agency….
That evidence showed that the Secretary was determined to reinstate a citizenship question from the time he entered office; instructed his staff to make it happen; waited while Commerce officials explored whether another agency would request census-based citizenship data; subsequently contacted the Attorney General himself to ask if DOJ would make the request; and adopted the Voting Rights Act rationale late in the process. …
And yet, viewing the evidence as a whole, we share the District Court’s conviction that the decision to reinstate a citizenship question cannot be adequately explained in terms of DOJ’s request for improved citizenship data to better enforce the VRA. Several points, considered together, reveal a significant mismatch between the decision the Secretary made and the rationale he provided….
Altogether, the evidence tells a story that does not match the explanation the Secretary gave for his decision. …
We are presented, in other words, with an explanation for agency action that is incongruent with what the record reveals about the agency’s priorities and decisionmaking process. It is rare to review a record as extensive as the one before us when evaluating informal agency action— and it should be. But having done so for the sufficient reasons we have explained, we cannot ignore the disconnect between the decision made and the explanation given.
Our review is deferential, but we are “not required to exhibit a naiveté from which ordinary citizens are free.” United States v. Stanchich, 550 F. 2d 1294, 1300 (CA2 1977) (Friendly, J.). The reasoned explanation requirement of administrative law, after all, is meant to ensure that agencies offer genuine justifications for important decisions, reasons that can be scrutinized by courts and the interested public. 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.
In these unusual circumstances, the District Court was warranted in remanding to the agency, and we affirm that disposition. See Florida Power & Light Co. v. Lorion, 470 U. S. 729, 744 (1985). We do not hold that the agency decision here was substantively invalid. But agencies must pursue their goals reasonably. Reasoned decisionmaking under the Administrative Procedure Act calls for an explanation for agency action. What was provided here was more of a distraction.
MORE TO FOLLOW.
Justice Thomas, joined by Gorsuch and Kavanaugh, wrote an concurring in part and dissenting in part opinion:
In March 2018, the Secretary of Commerce exercised his broad discretion over the administration of the decennial census to resume a nearly unbroken practice of asking a question relating to citizenship. Our only role in this case is to decide whether the Secretary complied with the law and gave a reasoned explanation for his decision. The Court correctly answers these questions in the affirmative. Ante, at 11–23. That ought to end our inquiry.
The Court, however, goes further. For the first time ever, the Court invalidates an agency action solely because it questions the sincerity of the agency’s otherwise adequate rationale….
The Court’s holding reflects an unprecedented departure from our deferential review of discretionary agency decisions. And, if taken seriously as a rule of decision, this holding would transform administrative law. It is not difficult for political opponents of executive actions to generate controversy with accusations of pretext, deceit, and illicit motives.
Will there be a census citizenship question in 2020? That may be determined more by the calendar required for printing and distribution than by subsequent lower court decisions.
It also opens to door to ongoing litigation over newly discovered evidence that goes to motivation.
So this looks like a win for those who don’t want the government to know how many citizens are in the country, and how many of the people answering the census are non-citizens (legally here or otherwise).
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Comments
It’s a census of the United States. A citizenship question is a natural inclusion. That this court has any problem with it suggests that John Roberts was wrong about our judiciary being judges, not politicians.
Agreed. What this means is … likely no citizenship questions EVER. I always thought laws are supposed to be based on common sense. Guess I was wrong.
Is there a penalty for simply not giving a response? I will return mine unanswered, unsigned, unchecked – with the words SCREW THE CORRUPT GUBMINT simply written in large block letters. I would like to see everybody do this as a national protest against insanity running amok.
Count me in! #BOYCOTT THE CENSUS
First, Roberts is a jerk-off loser. Secondly, the Census was originally supposed to be a simple headcount. I resent the hell out of the nosey other questions, which I seriously skew.
Oh, if you do that your going to be in for a couple of months of pain. I refused and this is what happened. At first they kept sending me Census forms in the mail with demands that I complete it or face $5,000 fines and possible jail time (<–that's a lie on their part by the way). After ignoring it for a while then I started getting the phone calls with "Census workers" demanding I arrange a meeting time to answer the Census questions. How they got my number I don't know but they did. I refused to do so and told them so. Then started the Census worker showing up at my door at random times knocking on my door and demanding I take the time to answer the Census questions on pain of $5,000 fine or jail time or both (again, that's a lie but oh well). After a while and several different Census employees showing up their alleged "Supervisor" showed up at my door telling me that under the law I was required to answer the Census questions or face a possible $5,000 fine, jail time or both. I again politely refused to answer the questions and told her I wasn't answering the Census this time around. She finally got it through her thick skull I wasn't going to be intimidated into answering and entered into her computer that I refused to complete the census and left. And that was the last I heard from them. So be prepared for the continual harrassment and hassle if you don't complete the Census. They are relentless until they realize you just won't answer the questions.
Oh, and that's just for the Census. If you're lucky enough to get chosen to complete the "American Community Survey" you get to go through all of the above again. And the ACS is randomly given to people every year. Not just every ten years.
Let’s see if they can make that stick if 60 million give them the finger. Gun up, people. It’s coming.
Well, I have thick skin and can take all the harassment they want to dish out. I’ll dish it back. I have always said there is strength in numbers. Look what the Hong Kong demonstrations did – that was a 26% population turnout and was huge.
The gubmint will arrest 100 people. It will arrest 1,000 people. There is no way in hell it will arrest 1,000,000 or more people. The gubmint is counting [and hoping] on the people to be sheep-like and afraid. I’m no sheep. I’m not afraid.
We need to band together to let those yokels know that we aren’t going to take it anymore. It’s our country. It is NOT the country of the 3rd-world invaders. Capiche?
Ben Franklin said “We must all hang together, or assuredly we shall all hang separately”. I hope there are millions who think like I do, and will hang together. Don’t forget the American revolution started with just 3% of the population in favor. If you feel the census question is necessary and reasonable, practice some civil disobedience.
I can’t recall getting any census forms to fill in. Ever. I’ve been at my current address since 1997, the longest I’ve ever lived anywhere. Everyone else has found me, but not the census people.
I have done and been through the same thing. They wore me out but finally disappeared.
You ask about sex, automobiles,the mileage on your car value of your house, religion, race…..anything. Except citizenship.
And yes, those questions and many more have been posed on general and special census over the years.
John Roberts was appointed by Bush. Both are worthless.
Yes, Bush appointed him, but Roberts concealed who he is. He clerked for Rehnquist and worked in the Reagan White House. Bush believed him to be conservative.
Bush knew. That’s why he appointed him. Wasn’t his first choice either.
Law-itis is killing us. Seriously, it’s killing the U.S.A.
Roberts and whomever else did this, they will be known in history as the executioners of the United States of America. As will those that wrote the decision in Plyler v. Doe and the Flores Settlement.
If the question is constitutionally sound then why does the reason for including it matter? Roberts has something to hide and I think it is the illegal adoption of his kids
For any significant judgement Roberts will ALWAYS side with the libs if it comes down to a 5-4 judgement. No matter what crazy rationale he needs to pull out of his butt
I’ve always unconciously put Roberts on the activist side of the court ever since his true colors were revealed in the obamacare ruling. I giggle whenever someone suggests that he is an originalist.
Trump needs to get another conservative judge in there quickly.
I would qualify that further- a Constitutionalist!
Roberts has been a total disappointment. If the question is constitutional, then I don’t understand why it can’t be included. Frankly, the Chief Justice is a hypocrite–he says that he wants a nonpolitical judiciary, and then he sides with the wrong side on this. What other reason can there be to rule like this?
Within 200 miles of the border the Patrol can stop and demand to know of what country you are a citizen and you must answer the same question when purchasing a firearm, so is that now unconstitutional as well?
Mark S, you missed the decision the other day, when SCOTUS said illegal aliens can get off scott free if they have a weapon, but didn’t know they were Illegal Aliens.
So, yeah SCOTUS already beat you there.
Law-itis, killing America one court decision at a time.
So can we now end our bromance with McConnell? So he is getting a record number of judges appointed across the board. What good does that do if they are all this lame?
You probably should have read more thoroughly.
Gorsuch and Kavanaugh agreed with Thomas that the Court should have stopped at, “The Secretary complied with the law.”
These are the two Trump justices McConnell helped get confirmed.
Both of them have been spotty (at best) so far. They are either constitutional constructionists or they aren’t. You can’t be partly pregnant nor sometimes honest. It’s easy to stick in that comment when you know it won’t matter.
“Doesn’t matter” exposes your ignorance of history.
The Court has a history, when reversing itself, of building those reversals on previous dissents. Thomas’ dissent may very well be the basis for overturning this idiotic ruling.
Maybe you should complain about the justices who agreed with it unconditionally.
Our Godkings has determined that the reasoning for the actions of your duly elected government is lacking.
An argument heard on FNC this morning was that asking the question would result in some number fewer residents of the country responding to the census. Obviously the question isn’t intended to determine the number of people resident, but rather the number of resident respondents are citizens. People who are citizens should never have any qualms about responding to such a question. Whether they will complete the census questionnaire is another issue entirely, many citizens find the questions of the long form far too intrusive and unnecessary for the decennial count. People who are legal immigrants admitted for residence should also have no qualms about a negative answer (or no answer at all if it is only an affirmative check box), they have a Green Card to affirm their legal status. Frankly, I couldn’t care less if Illegal Aliens don’t respond to the Census, obviously some politicians and activists do care. Damned shame they have mostly prevailed this time around as I see this most likely not being resolved until in time for the 2030 Census (which I would hope I will be around to be counted, though pushing 90 I may not remember what a census is).
Print the census with the question, then, oops, we’ll have to delay it while we take it back to court.
Apparently the Dems don’t want the question because illegals would not answer the census, thereby skewing the totals for reps in the House. They reason that if they fight hard enough for the illegals, they will get more Dem votes. Stack the House.
Yes, I know the wording somewhere is “people” but this is killing off national citizenship in favor of the “citizenship of the world”. This is a de facto way of giving non-citizens … especially those illegally here “the vote” in that their presence determines House representation. Roberts has helped make citizenship worth… less.
If there is a saving grace should everything so south, take “comfort” that the majority of those supporting this will rue the day. A little late but any suffering they have will be well earned.
The wording isn’t people, it’s “Persons”, and it is part of the very plain language of the 14th Amendment. So, until the Constitution is amended, we count Persons for purposes of reapportionment, not Citizens.
you speak of the 14th yet….you missed a few words.
************
All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.
***************
and they are important words.
not the part we’re talking about – that part has nothing to do with the census, or who is counted.
read section 2 of 14A
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. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the executive and judicial officers of a state, or the members of the legislature thereof, is denied to any of the male inhabitants of such state, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such state.
The longer language is talking about States that try to deny the vote to certain groups. So, if a State isn’t trying to deny voting rights to anyone, then it doesn’t come into play.
But just to be clear, I agree that the question should be asked, and that it’s lawful to ask it. Just pointing out that even if the answer to the citizenship question is “no”, that person still counts as part of the population for reapportionment purposes.
The Dems are afraid illegals won’t answer the census because of the question.
Why not also include the motivation of those against such a question being included?? If they are going to now start questioning the motivation of those proposing certain actions then perhaps they should also start taking in to considerations the motivations of those opposed to certain actions as well?!?! Slippery slope and all that.
Although, is this really saying “yes you can have the question included as long as you cross your T’s and dot your I’s thoroughly so as to be beyond doubt and incontestable”.
That last bit actually sounds pretty reasonable to me.
John Roberts is absolutely useless.
Like tits on a bull.
He’s worse than useless, he’s dangerous!
Put the question on the census form.
Since when does the executive branch have to explain itself to a court? This nonsense has to stop. Either the census question is legal or it isn’t, and reasoning has nothing to do with that determination.
Since the Congress required executive branch to do so in the Administrative Procedure Act, 1946. You can read about it here:
https://en.wikipedia.org/wiki/Administrative_Procedure_Act_(United_States)
Short version: executive branch agencies must go through a process to make rules and regulations; that was later expanded to include all forms, documents, requests/demands to and of citizens, etc. The idea is to prevent arbitrary procedures from denying citizens their rights to due process in the administration of government. The APA is, as you would expect, as arcane a law as you’ll ever find, particularly with its implementation, rules, guidelines, procedures, etc. And now of course, there’s a whole body of law around it.
It’s a great way to monkey-wrench an agency because one can always sue saying that the agency in question didn’t follow the APA. That’s what happened here.
idgi, are you saying bureaucrats and this shitty ‘APA’ trumps the constitution, and that we just have to eat this shit sandwich and give away our country? Interesting.
He’s saying that Congress passes the laws, and the Executive Branch must act within those laws until such time the law is found unconstitutional.
It’s how we avoid having tanks rumbling up and down the streets every other day of the week.
As legal and political means for settling differences peacefully and satisfactorily are made less and less functional, it makes those tanks more likely. It is not desirable, but when a Social Contract collapses and whatever political/legal means used by the culture are discredited; there is no halfway point between those means and violence used to establish a new Social Contract. That Social Contract will not necessarily be better than the old one, and probably be worse.
Hard times are probably guaranteed. Survival of oneself and one’s family and compatriots is becoming paramount.
Subotai Bahadur
Nice, but congress never passed any laws regarding census questions regarding citizenship status. My reading is that the Supreme Court is judging whether or not the president has a ‘worthy’ reason to add the question. My reading is that it’s the Supreme Court behaving extra-constitutionally. Your tanks will be coming from the court, not from the president. Why do you hate our country so much?
No, I’m simply pointing out that agencies constituted by the Congress (like the Census Bureau) that live in the executive branch, can be regulated by the Congress. The APA ordinarily makes sure that final rules and regulations have been reviewed thoroughly and that stakeholders have some opportunity to speak their peace. Whether the rules make any sense is another question, and (as I said before) the APA is frequently used to paralyze government agencies, and keep them paralyzed.
Like many here, I believe the Census Bureau did meet the standards of the APA. The USSC said otherwise, and Justice Roberts’ opinion unfortunately suggests that his feeling were hurt. That doesn’t make the ideas behind the APA wrong.
It does make the idea behind the APA wrong.
Congressmen would have a hard time explaining to voters why a citizenship question WAS NOT in the census. This way, elected reps don’t have to explain, they palm responsibility to bureaucrats.
Congress should not be passing the buck, it should make the decision and then face voters at the booth. Or the President should make the decision and then face voters at the booth.
But the court should stay the hell out of it. I don’t see a justiciable issue here, nor standing.
It’s political.
The Court said that the citizen question is constitutional. It was asked on every long form census questionnaire from 1890-2000, when the long form was “retired”. It has been asked of every household [3.5 million per year] by the American Community Survey (ACS) since that program was initiated. So, it is constitutional for the government to ask the question.
The problem in the Court’s decision is that the majority simply chose to discount the perfectly reasonable grounds for incorporating the question in the 2020 Census. They said that it was not the complete list of all the probable reasons for the inclusion of the question. Under the APA, there is no requirement that all possible, or even probable, reasons for changing an administrative rule be included in the explanation for the change. All that is required is that a reasonable explanation for the change be provided. The Census Bureau did exactly that. The reason that the majority would not accept that reason, alone, is politics. The census is used to establish federal representative districts. It odes this based upon the number of “persons” residing in a given area. The Democrat argument is that including a citizenship question would reduce the number of persons being included because illegal aliens would not respond. What is missing from that argument, is the assumption that a significant number of illegal aliens reside in Democrat districts. If the illegal aliens, living in the US were not counted, then this could negatively impact Democrat control of representative districts by requiring reapportionment which could benefit Republicans. Of course, there is nothing which says that the illegal aliens would not simply lie on the census form [they are already lying about the their immigration status and using fraudulent identification to gain employment here].
So this was simply another specious political decision from the increasingly political SCOTUS.
Clearly, ICE needs to up their game. Vigorous enforcement of standing immigration *law*. He threatened it last week and delayed 2 weeks. Go to it today. Loudly and very visibly. Prosecute employers who habitually employ foreign nationals without green cards. Confiscate the business as fruit of a crime.
Chief Justice Roberts gives a pair of middle fingers to the president. “I run the government”, he says.
But it is required when I get a driver’s license, passport, firearm, voteing, applying for an SSN and SS, a State ID and selling real estate.
But when it matters on a macro-level…verboten. Even though on a macro-level the consequences for the country are enormous. What the court is really trying to do is hide illegal voting, because a census of citizens can statistically help determine such. One would think that was desirable.
“We the People of the United States… and our Posterity”
You know, American citizens.
Roberts must be forced out, if Obama has something on him Trump can find it
IMO it’s the adoption of his kids. Google can provide enough for a Senate investigation
That is a pretty queer response from someone who can supposedly read.
THIS sounds like more Mueller double-speak, giving room for any number of interpretations and allowing another 4-8 years of arguing about this common sense census question. These ‘justices’ are certainly products of the American culture. America could do better with intelligent cab drivers for ‘justices’.
Just wait until 20-50 million more immigrants come in from Africa and S.America making the USA look like every other 3rd World shithole. They’ll still be arguing about this question.
The census is not intended as a tool for countering that. As much as I view this decision as one of convenient logic and convenient memory, using the census as a method to dissuade illegal entry is on shaky ground, vulnerable to court decisions such as this one. I’ve seen the Trump administration blamed for “bureaucratic incompetence” because it can’t seem to win cases like this through pretending harder that a political decision, isn’t. I’m not sure it’s that or the courts simply find Democrats inherently believable.
Lashown, amen!
Wow, a bold stand against contrived reasons given by federal agencies. I’d applaud if I wasn’t well aware the courts will forget all about this the next time Democrats hold the Oval Office.
“…but it’s unclear if there is time to get it resolved under deadlines for printing census forms.”
I have a feeling that President Trump is not concerned about the printing deadline.
Well, gee, Justice Roberts.
I guess the rationale for every question on the census can now be questioned.
Therefor, it is now prudent to delay the census until all questions are settled.
This is the precedent you have created. Get bent.
So now you’re expecting reason and logic? Good luck with that!
The UniParty government has summarily rejected reason and logic. Which leaves only defiance at any number of levels.
Subotai Bahadur
Roberts is just awful. I’m not even going to talk about this decision, as I’m beginning to think that individual cases mean nothing to this man. He’s got something larger going on. Is it, I give one to the right, then one to the left? Or is it two, right, two left? Or 1 right, two left?
He is one hair-splitting bastard. He knows where he wants to go, according to his secret algorithm–is is amity? drinks after class? love?–and he always, always, finds a way to get there.
In this case, he seems to have swallowed, whole and entire, what CNBC, CNN & the rest of the left said about MOTIVE. I’m also starting to think Roberts isn’t as smart as he thinks he is, maybe not even as smart as that cracker fool who appointed him.
Sidebar: on the material side, I can’t see people here illegally filling out a census form one way or another.
OK, so when Obama said Obamacare was not a tax. Then before the court claimed it was a tax. That was OK but not this.
Well I won’t answer a census that doesn’t include the question. We need a movement on this.
I agree! If you Tweet start #BOYCOTT THE CENSUS
Right, not a tax but it institutes what, a dozen new taxes?
With all due respect, while I completely agree with you, representation of the states is determined by the census, so it would be counterproductive for us to fail to answer it.
But we began rebelling immediately after the census, and the census 10 years later was the capstone of the effort, yes. But not the beginning. . . .
14A – section 2 effectively requires the citizenship question
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. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the executive and judicial officers of a state, or the members of the legislature thereof, is denied to any of the male inhabitants of such state, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such state.
Well, they plan to allow them to vote, so…..
excellent point, btw
Along with dismantling the FBI and DOJ, burning it to the ground and starting over, I add the SCOTUS. In fact I’m elevating SCOTUS to the top of the list until Trump gets another appointment.
The citizenship question is the most important one on the census. There are many worthless questions on the census. Questions about race, income, whether you rent or own a house, and how many bathrooms are in your house should be eliminated.
Half serious:
Tourists are not counted as “persons.” Why not define undocumented aliens as tourists without visas?
More serious:
If under the 14A, “Indians not taxed” continued to be not counted because they are not citizens, is it not reasonable to infer that the Founders meant “whole persons” to mean citizens?
Should just put the question in and say What are you going to do? Sue us again?
It’s what the democrats would do.
Impossible to have anything but contempt for this court.
Mr. Roberts, following your reasoning in this case,I believe you had an ulterior motive for siding with leftists in this case: you employed your tortured logic because they got something big on you, boy. As you had an ulterior motive for your decision, I am sure, under your current rationale, that you must agree that your ulterior motive voids what would have been your otherwise valid decision.
I agree that Roberts has been a terrible mistake–just like Blackman before he thinks his rrputation weill depend upon his evaluation by the Harvard-Yale law professor combine.I am grateful thatI am 87 and will not have too much longrer to live in a country that that is no longer the one in which I was born and raised. The New Deal was the first step in its destruction; next came the Warren-Brennan court, and now the socialists that control the Democratic Party in behalf of the moochers who live off the government trough are beating at the gates.
Well spoke. Maybe Trump can hold the fort until common sense prevails.
It seems as if this decision relied in doctrines of administrative law, an oxymoronic pot of sludge.
Roberts is a moron.
Seen enough; get rid of him.
WTF?
You mean they could not cross examine the lawyer representing the Commerce Department?
Common Sense is obviously extinct!
The blackmail of Roberts over his shady adoption still works?