The citizenship question

You may not want to understand the Supreme Court’s June 27 decision essentially nixing the Trump administration’s effort to include a citizenship question on the 2020 Census. You may not want to know where the Supreme Court derives the authority to weigh in on this issue. You may rather want to know how such a fundamental question ever came to be omitted from the Census in the first place.

The Court’s decision in this case comes mostly under the aegis of administrative law and the Administrative Procedure Act. You may not be interested in administrative law, but administrative law is interested in you.

The Court’s decision came in Department of Commerce v. New York. The unreliable Chief Justice Roberts wrote the opinion joined in relevant part — i.e., Part V — by the Court’s reliably leftist justices, who never fail to keep up with the progressive imperatives of the Democratic Party. The case raised subsidiary issues that produced shifting subgroups supporting other parts of Roberts’s opinion. Amy Howe has written an extremely useful guide posted both here at Howe on the Court and here at SCOTUSblog, where I originally found it.

The Court’s five-page syllabus concludes with this scorecard: “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.” You can see where a guide like Howe might come in handy.

The Court’s decision is bad, but it could have been worse. It could have been worse if Part III of Roberts’s opinion had held that the decision to add the citizenship question violated the Constitution’s enumeration clause — and it was a close-run thing. It should tell you all you need to know about Breyer and his left-wing colleagues that they would have gone the other way on this issue.

Justice Thomas dissented in relevant part in an opinion joined by Justices Gorsuch and Kavanaugh. Justice Alito dissented in relevant part in a separate opinion that answered my question about whatever happened to the citizenship question in the first place. Justice Alito’s opinion gets into its history and into the heart of the case in this quotable quote: “To put the point bluntly, the Federal Judiciary has no authority to stick its nose into the question whether it is good policy to include a citizenship question on the census or whether the reasons given by [Commerce] Secretary Ross for that decision were his only reasons or his real reasons.”

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