The Supreme Court Temporarily Blocks Citizenship Question on the 2020 Census

The Supreme Court Temporarily Blocks Citizenship Question on the 2020 Census

Legal Sidebari

The Supreme Court Temporarily Blocks
Citizenship Question on the 2020 Census
Mainon A. Schwartz
Legislative Attorney
Benjamin Hayes
Legislative Attorney
Updated July 3, 2019
UPDATE: On July 2, 2019, the Department of Justice announced that the 2020 census form will not
include a citizenship question. This development likely renders moot all pending challenges to the
Department of Commerce’s decision to add a citizenship question to the 2020 census. Nonetheless, the
Supreme Court’s decision in Department of Commerce v. New York could have important implications
for administrative law and election law, as well as for any future effort to add a citizenship question to the
census.
The original post from June 28, 2019, is below.
On June 27, 2019, the Supreme Court issued its decision in Department of Commerce v. New York—the
case involving several challenges to the decision by the Secretary of the Department of Commerce
(Commerce), Wilbur Ross, to add a citizenship question to the 2020 census. Chief Justice Roberts
authored the opinion for a majority of the Court, though different combinations of Justices comprised the
majority for different parts of the opinion. In that opinion, the Supreme Court held that the Secretary’s
decision did not violate the Enumeration Clause of the U.S. Constitution or the Census Act, and that the
Secretary’s decision was supported by evidence before the agency. However, the Chief Justice—joined by
Justices Ginsburg, Breyer, Sotomayor, and Kagan—concluded that the Secretary’s decision was unlawful
because the reason he gave for adding the citizenship question was not the actual reason for his decision.
The Court thus instructed that the case be sent back to Commerce to allow the Secretary to provide a non-
pretextual justification for his decision. But the window for the agency to provide that justification is
closing: the United States has represented that the deadline for finalizing the 2020 census questionnaire is
the end of June 2019 while the plaintiffs have suggested that the deadline is the end of October 2019.
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Moreover, at least one ongoing lawsuit challenging the Secretary’s decision involves a legal argument not
addressed by the Supreme Court’s decision, thus presenting another possible barrier to the addition of a
citizenship question to the 2020 census.
This Sidebar provides an overview of the legal framework governing the census and the legal challenges
to Commerce’s decision to include a citizenship question on the 2020 census. The Sidebar then discusses
the Supreme Court’s decision, identifies issues left unresolved by the decision, and addresses potential
considerations for Congress.
Legal Framework for the Census
Article I, section 2 of the U.S. Constitution, as amended by Section 2 of the Fourteenth Amendment,
requires that an “actual Enumeration” be taken—that is, that “the whole number of . . . persons” in each
State be counted—“every . . . Term of ten Years, in such Manner as [Congress] shall by Law direct.” The
results of the decennial census are used to determine the number of seats each state will have in the U.S.
House of Representatives for the next decade and to allocate certain federal funds among the states.
In line with the Constitution’s directive, Congress, through the Census Act, has required the Secretary of
Commerce to “take a decennial census of population” and grants the Secretary discretion to do so “in
such form and content as he may determine” and to “obtain such other census information as necessary.”
The discretion conferred by the Census Act, however, is not unlimited. Though the Secretary has authority
to “prepare questionnaires” to obtain information by means of “direct inquir[y],” Section 6(c) of the Act
instructs the Secretary to first attempt to obtain such information from federal, state, or local government
administrative sources “[t]o the maximum extent possible” and “consistent with the kind, timeliness,
quality and scope” of the information needed. Moreover, to facilitate congressional oversight, Section
141(f) of the Act directs the Secretary to “submit [reports] to the [appropriate] committees of Congress”
identifying
1. the “subjects proposed to be included [on the census questionnaire], and the types of
information to be compiled”;
2. “the questions proposed to be included in [the] census”; and
3. if “new circumstances exist” that require the “subjects, types of information, or
questions” to be modified, a report containing those modifications.
To help ensure accurate census data, federal law requires individuals to respond to the census
questionnaire. Those who refuse, willfully neglect to respond, or willfully give false answers, may be
subject to monetary penalties. And to protect personal privacy, federal law prohibits Commerce
employees (which includes Census Bureau employees) from using, publishing, or allowing others to
“examine” census information (except in narrowly defined circumstances). Violators may face monetary
penalties and imprisonment.
Legal Challenges
Many prior decennial censuses have included a question related to national origin or citizenship. With one
exception, a question about citizenship was asked of at least some of the population as part of every
census from 1820 through 1950, though that question was removed from the general census questionnaire
after the 1950 census. From 1970 through 2000, a citizenship question was included in a longer version of
the decennial census form sent to a fraction of the population. This “long form survey” was later replaced
by the American Community Survey—an annual survey sent to only a portion of the population—which
has included a citizenship question since 2005.

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On March 26, 2018, Secretary Ross issued a memorandum stating that the Census Bureau would add a
citizenship question to the 2020 decennial census form that would be distributed to every household. As
the sole basis for the inclusion of this question, Secretary Ross explained that he made this decision
because the Department of Justice (DOJ) had requested the inclusion of a citizenship question to facilitate
enforcement of Section 2 of the Voting Rights Act (VRA). Section 2 of the VRA prohibits voting
practices that dilute minority voting power and a plaintiff making a “vote dilution” claim must show
(among other things) that the “eligible voters” of a minority group—who usually must be citizens—are “a
majority in a single-member district” capable of electing their candidate of choice.
After the memorandum was released, several plaintiff groups filed lawsuits in federal district court in
California, Maryland, and New York, challenging the Secretary’s decision. They argued, among other
things, that the decision violated (1) the Enumeration Clause, (2) the equal protection component of the
Fifth Amendment’s Due Process Clause, (3) Sections 6(c) and 141(f) of the Census Act, and (4) the
Administrative Procedure Act (APA).
On January 15, 2019, the U.S. District Court for the Southern District of New York issued a 277-page
opinion concluding that Secretary Ross’s decision to add a citizenship question to the 2020 census was
unlawful. First, the court ruled that the Secretary’s decision violated Section 6(c)’s requirement that
Commerce rely “[t]o the maximum extent possible” on state and federal administrative records to obtain
desired information. Second, the court held that the Secretary violated Section 141(f) by failing to timely
report to Congress that citizenship would be a “subject” addressed on the census questionnaire. Finally,
the court concluded that Secretary Ross’s decision was arbitrary and capricious, reasoning that his
reliance on the DOJ’s request was pretextual because he “made the decision to add the citizenship
question well before DOJ requested its addition in December 2017.” The court further held that Secretary
Ross unjustifiably departed from certain administrative procedures and failed to fully consider possible
alternatives in light of the evidence before him. To reach these conclusions, the district court relied on
evidence outside the administrative record that the plaintiffs had obtained through discovery—an action it
justified (in part) by concluding that the Secretary had likely acted in bad faith by not disclosing the true
basis for his decision. Finally, the court concluded the plaintiffs had not produced sufficient evidence to
support their equal protection claim. In so doing, the court dispensed with the last of the plaintiffs’
constitutional claims, having dismissed their Enumeration Clause claim in a prior order.
Though district court decisions are normally appealed to a federal court of appeals, the United States
asked the Supreme Court to directly review the Southern District of New York’s decision, based on its
representation that the census questionnaire must be finalized by the end of June 2019. The Supreme
Court agreed. After federal district courts in California and Maryland concluded that the addition of a
citizenship question would violate the Enumeration Clause, the Supreme Court expanded the scope of its
review to include that issue. However, though the Maryland district court (like the Southern District of
New York) had also rejected the plaintiffs’ equal protection claim, the Supreme Court did not review that
issue.
The Supreme Court’s Decision
On June 27, 2019, the Supreme Court issued its decision in Department of Commerce v. New York. Chief
Justice Roberts’s opinion garnered a majority of the Court, though the Justices comprising the majority
for each issue varied. The Court rejected the plaintiffs’ Enumeration Clause and Census Act claims, while
also concluding that the Secretary’s decision to reinstate a citizenship question could be supported by the
evidence before him. However, the Court also recognized that agencies are required to disclose the
reasons for their decisions in order to facilitate meaningful judicial review. Upon reviewing the evidence,
the Court determined that the Secretary’s stated reason for reinstating the citizenship question—to
provide DOJ with citizenship information for VRA enforcement—was not the actual reason for his
decision. On that basis, the Court ruled that the Secretary’s decision was unlawful.

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The Majority Opinion
On the merits, the Chief Justice—joined by Justices Thomas, Alito, Gorsuch, and Kavanaugh—first
concluded that the Secretary’s decision to reinstate a citizenship question did not violate the Enumeration
Clause. In particular, the Court observed that “demographic questions have been asked in every census
since 1790” and that “questions about citizenship in particular have been asked for nearly as long.” Based
on this “consistent historical practice”—combined with the “‘virtually unlimited discretion’” given
Congress to conduct the census—the Court determined that the Enumeration Clause does not prohibit the
Secretary of Commerce from inquiring about citizenship on the census questionnaire.
Next, these Justices disagreed with the district court’s determination that the Secretary’s decision was
contrary to the evidence. The Court concluded that the Secretary’s decision to rely on both administrative
records and a citizenship question to obtain accurate citizenship data—rather than relying solely on
administrative records—was a reasonable exercise of the Secretary’s discretion in light of the available
evidence. Either option, the Court concluded, “entailed tradeoffs between accuracy and completeness,”
and, where the “choice [is] between reasonable policy alternatives,” the Secretary has authority to choose.
The Court also decided that the Secretary had reasonably weighed the costs and benefits of reinstating the
citizenship question. The Court noted that the Secretary had explained why the “risk[s] w[ere] difficult to
assess,” and concluded that he had reasonably “[w]eigh[ed] that uncertainty against the value of obtaining
more complete and accurate citizenship data.” In the end, the Court was unwilling to second-guess the
Secretary’s conclusion, particularly as “the evidence before [him] hardly led ineluctably to just one
reasonable course of action.”
The same Justices also ruled that the Secretary’s decision did not violate the Census Act. With respect to
Section 6(c), the Court determined that the Secretary reasonably concluded that exclusive reliance on
administrative records to obtain citizenship data “would not . . . provide the more complete and accurate
data that DOJ sought.” Thus, because administrative records alone would not supply the “kind and
quality” of “‘statistics required,’” the Court ruled that the Secretary had complied with Section 6(c)’s
requirement to rely “to the maximum extent possible” on administrative records. The Court also
determined that the Secretary complied with Section 141(f) of the Census Act. Though the Secretary had
not included “citizenship” as a “subject” in his initial report to Congress, the Court concluded that by
listing “citizenship” as a “question” in a later report, the Secretary had complied with the Census Act’s
procedures for modifying an earlier report. Regardless, the Court reasoned that any violation “would
surely be harmless” as “the Secretary nonetheless fully informed Congress of, and explained, his
decision.”
Lastly, the Chief Justice—joined now by Justices Ginsburg, Breyer, Sotomayor, and Kagan—held that the
Secretary’s sole stated reason for adding the citizenship question to the census (i.e., providing the DOJ
with citizenship data for VRA enforcement) was not the real reason for his decision. The Court began by
reaffirming that agencies are required to disclose the actual reasons for their decisions in order to facilitate
effective judicial review. And, while courts normally accept as true an agency’s stated reason for its
action, courts may review evidence outside the agency record to probe the justifications for an agency
action if there has been a strong showing of bad faith or improper behavior by the agency.
Based on these principles, the Court first determined that evidence outside the agency record was properly
considered in evaluating the lawfulness of the Secretary’s action because some of the evidence suggested
that the Secretary’s stated reason for adding a citizenship question was pretextual. The Court then
conducted its own review of the evidence, and noted that while the Secretary “began taking steps to
reinstate a citizenship question about a week into his tenure,” there was “no hint that he was considering
VRA enforcement” at that time. In addition, the Court observed that Commerce had itself gone “to great
lengths to elicit the request [to add a citizenship question] from DOJ.” In the end, “viewing the evidence

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as a whole,” the Court concluded that “the decision to reinstate a citizenship question [could not] be
adequately explained in terms of DOJ’s request for improved citizenship data to better enforce the VRA.”
Given this “disconnect between the decision made and the explanation given,” the Court agreed with the
Southern District of New York that the Secretary’s decision violated the APA because the Secretary had
not disclosed the actual reason for his decision. However, the Court was clear that it was “not hold[ing]
that the [Secretary’s] decision . . . was substantively invalid,” but was instead requiring the Secretary to
disclose his reason for that decision. And to give the Secretary this opportunity, the Court directed the
district court to send the case back to the Department of Commerce.
Justice Thomas’s Dissent
Though various Justices dissented from portions of the Court’s opinion, the most immediately
consequential portion of the Court’s ruling—that the Secretary’s stated reason for reinstating the
citizenship question was pretextual—prompted a dissent from Justice Thomas that was joined by Justices
Gorsuch and Kavanaugh.
Justice Thomas first argued that the Court was wrong to rely on evidence outside the administrative
record to assess whether the Secretary’s justification was pretextual. Under the APA, Justice Thomas
explained, judicial review of an agency decision is normally based on “the agency’s contemporaneous
explanation” for its decision, and courts may not invalidate the agency’s action even if it “ha[d] other,
unstated reasons for the decision.” And though Justice Thomas acknowledged that review of extra-record
materials may be permissible upon a showing of bad faith, in his view this case did not meet that
standard. Moreover, Justice Thomas concluded that, even if such review were appropriate, none of the
evidence established that the Secretary’s stated basis for his decision “did not factor at all into [his]
decision.” In Justice Thomas’s view, the evidence showed “at most, that leadership at both the
Department of Commerce and the DOJ believed it important—for a variety of reasons—to include a
citizenship question on the census.” Finally, Justice Thomas criticized the Court’s decision as being the
“the first time the Court has ever invalidated an agency action as ‘pretextual,’” and contended that the
Court had “depart[ed] from traditional principles of administrative law” and “opened a Pandora’s box of
pretext-based challenges in administrative law.”
Post-Supreme Court Issues and Claims
Though the Supreme Court’s decision resolved most of the plaintiffs’ claims, it still left some issues
unresolved. To begin, the Court’s decision appears to leave open the possibility that the citizenship
question could still be added to the census. The Court made clear that it had not deemed the Secretary’s
decision “substantively” unlawful, and so the Secretary may be able to reinstate the citizenship question if
he provides a non-pretextual explanation for doing so. In the event the Secretary again decides to add a
citizenship question to the 2020 census, that decision (like his first) could be challenged in federal district
court. If it is, the losing party could still appeal that decision to the court of appeals or seek expedited
review in the Supreme Court.
In addition, although the Supreme Court rejected the plaintiffs’ Enumeration Clause claim, it did not
address the lower court’s rulings that the plaintiffs failed to establish a violation of the equal protection
component of the Due Process Clause. In the Maryland case, the plaintiffs had appealed the dismissal of
their equal protection claim to the U.S. Court of Appeals for the Fourth Circuit, but they later sought to
have that claim reevaluated by the district court in light of new evidence allegedly indicating that
Secretary Ross had a discriminatory motive for reinstating the citizenship question. The Fourth Circuit
recently granted this request so the district court could conduct further proceedings. Once the district
court issues a ruling on this claim, the non-prevailing party may seek review in the Fourth Circuit or the
Supreme Court. In the meantime, the plaintiffs in the Maryland case have requested that the district court

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enter an order preventing the United States from adding a citizenship question to the census while their
equal protection claim is being adjudicated.
These ongoing proceedings could pose practical challenges for the inclusion of the citizenship question on
the 2020 census. The United States has represented that the census questionnaire must be finalized by
June 30 of this year, though some of the plaintiffs have contended that October 31 is the actual deadline.
Whether the Department of Commerce will be able to add a citizenship question to the 2020 census could
depend on which of these deadlines holds true. However, even if the October 2019 date applies, the
parties may have difficulty obtaining full judicial review—from a court of appeals and/or the Supreme
Court—of any rulings from the district courts before that deadline.
Considerations for Congress
Though Congress has delegated significant responsibility for the census to the Secretary of Commerce,
the Constitution makes clear that Congress has ultimate authority over how it is conducted. Congress thus
has the authority to pass legislation, subject to presidential veto, that would either require or prohibit the
inclusion of a citizenship question or other demographic questions in the future or impose additional
restraints on the Secretary’s existing authority to add questions to the decennial census. Alternatively,
Congress could include language in the appropriations bill for the Department of Commerce regulating
the manner in which funds may be used to implement a citizenship question on the 2020 census.
Congress could also enact more general guidance. For example, bills introduced in the 116th
Congress would mandate a certain amount of research, study, and testing for any new questions
or design features, and also require the Secretary to submit detailed statements on such testing to
Congress and the general public. Though such requirements would not necessarily prevent the
inclusion of a citizenship question on future census forms, they could require more extensive
analysis before any question may be added to the census, thus providing Congress with more
complete information about the consequences of doing so.

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