The Trump administration wants to reinstate a citizenship question on the 2020 Census. Opponents allege that the administration did not follow proper administrative procedures in coming to and announcing the change.More substantively, opponents argue that the change somehow contradicts the constitutional mandate in Article 1, Section 2, to have an “actual Enumeration” of population. This latter argument, unlike the administrative argument, is particularly weak since having a citizenship question does not limit the census to only citizens; having the question on there suggests that non-citizens will be counted in the census, but with information provided as to citizenship.In late January 2019, we noted Trump Admin seeks direct Supreme Court review of Census Citizenship Question case.
We recently covered how a Federal judge orders citizenship question removed from 2020 Census.In the normal course, the case would go to the Second Circuit Court of Appeals. But the Commerce Department has filed for a Petition for a Writ of Certiorari Before Judgment (pdf.)(full embed at bottom of post).This direct review, though rarely granted in the past, is becoming an increasingly common strategy by the Trump administration where District Courts drive national policy through nationwide injunctions. The Supreme Court recently stayed a lower court injunction against the new military transgender policy without waiting for the appeals court to rule….In the transgender military case, the government followed up the petition for a writ of certiorari before judgment with a request for a stay. I noted the significance of the stay in that case:
The Supreme Court’s orders seem to be a reflection that the conservative Justice recognize a dilemma unique to the Trump era — District Courts effectively running policy decisions reserved to the Executive Branch based on aggressive constitutional and statutory interpretations bathed in politics.
Given the time constraints and need for finality by June argued by the government, it’s hard to see how a stay of the lower court ruling would suffice. It would leave the ultimate merits uncertain.
So expect the Supreme Court to either take the case or reject it, but not to issue a stay.
The Supreme Court today issued an Order granting certiorari and ordering an April oral argument:
The petition for writ of certiorari before judgment is granted. The case will be set for argument in the second week of the April argument session.
This means the case will be decided before the end of June, the deadline the government had indicated it needed to meet if any changes were going to be made to the Census questions.
I’m not familiar enough, right now, to pass judgment on the administrative law issues. But on the substantive issue of whether the Department of Commerce can ask a citizenship question, the answer clearly is Yes.
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