On April 23, the Supreme Court will hear oral arguments in Department of Commerce v. New York, the legal challenge arising from Commerce Secretary Wilbur Ross’s decision to ask about the citizenship of census respondents. The case presents three questions: First, whether the 2020 Decennial Census can ask regarding each person counted at each residential address in the nation whether that person is a U.S. citizen. Second, whether district courts in an Administrative Procedure Act (APA) can order discovery beyond the administrative record to examine a Cabinet officers’ decision-making. And third, whether adding a question on citizenship violates the Constitution’s Enumeration Clause.
Citizenship is not a novel question for during decennial census activities. It was first asked in 1820, and was most recently asked in 1950. However, the district court in this case issued a 270-plus page decision holding that the question on the 2020 census was illegal. An appeal of that decision was pending before the U.S. Court of Appeals for the Second Circuit when the justices granted certiorari before judgment, the first time doing so in many years. This was likely motivated in part by the federal government’s assertion that census forms must be finalized before July 2019 to properly carry out the 2020 census.
The implications of this case are far-reaching. The federal government maintains a database with the residences of all legal aliens in this country, so cross-referencing those with census forms including citizenship could in theory reveal the whereabouts of most illegal aliens in the United States, assuming potential legal impediments to sharing that information could be resolved. This also could be a significant case on discovery involving high-level government officials, and also of APA litigation.
Featuring:
Dr. John S. Baker, Jr., Professor Emeritus, Paul M. Hebert Law Center, Louisiana State University
Mr. Kenneth A. Klukowski, Senior Fellow, American Civil Rights Union

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