Image 01 Image 03

ConCensus: Supreme Court looks likely to uphold Census citizenship question

ConCensus: Supreme Court looks likely to uphold Census citizenship question

Clear ideological divide apparent in Supreme Court oral argument — Read the highlighted transcript.

The Supreme Court heard oral argument on the issue of whether the Commerce Department can add a citizenship question to the Census.  Various District Courts ruled against the Trump administration, and the administration sought the unusual remedy of direct review by the Supreme Court.

We previously covered the issues in our post when the Supreme Court granted direct review, Supreme Court agrees to hear Census citizenship question case.

The oral argument was today. You can read my highlighting of the transcript (pdf.) in full at the bottom of this post.

The consensus among mainstream media commentators was that the administration is going to win.

Adam Liptak at The NY Times wrote, On Census Citizenship Question, Supreme Court’s Conservatives Appear United:

The Supreme Court’s conservative majority seemed ready on Tuesday to allow the Trump administration to add a question on citizenship to the 2020 census, which critics say would undermine its accuracy by discouraging both legal and unauthorized immigrants from filling out the forms….

It appeared to divide the court along the usual lines, with its five conservative members poised to defer to the administration and the court’s four liberal members ready to question its motives and methods….

Justice Sonia Sotomayor, who took the lead in challenging the administration’s proposal, said that adding the question would do damage to the fundamental purpose of the census, which is to count everyone in the nation. “There is no doubt that people will respond less,” she said. “That has been proven in study after study.”

Solicitor General Noel J. Francisco, representing the Trump administration, acknowledged that the question could depress participation. But he said the information it would yield was valuable.

“At the end of the day,” he said, “if you add any particular question onto the census, you’re always trading off information and accuracy.”

How to strike that balance, he said, was a policy judgment properly made by Mr. Ross. The more conservative justices appeared to agree.

Politico’s Josh Gerstein and Ted Hesson wrote:

The Supreme Court seemed divided along ideological lines Tuesday as the justices heard arguments about the Trump administration’s move to add a question about citizenship to the 2020 census.

All of the court’s four liberals sounded highly skeptical about Commerce Secretary Wilbur Ross’ decision, which three federal judges found illegal because it lacked a coherent explanation and could lead to a large undercount of noncitizens as well as Americans of Hispanic origin….

Most of the court’s conservatives appeared inclined to green-light Ross’ move, with Justices Neil Gorsuch and Samuel Alito appearing most hostile to states and civil rights groups’ legal challenges to the citizenship question.

Alito said he was convinced of deep flaws in estimates that adding the question could lead to roughly 5 percent fewer responses from noncitizens.

“I don’t think you to have to be much of a statistician to wonder about the legitimacy of concluding that there is going to be a 5.1 percent lower response rate because of this one factor,” Alito declared. He and Gorsuch said factors other than citizenship, such as income or socioeconomic status, might explain why noncitizens more frequently ignore census surveys.

Chief Justice John Roberts seemed to be in the same camp as Gorsuch and Alito, but was somewhat less strident in his questions.

Justice Brett Kavanaugh, who directed probing questions to both sides, seemed to give less away about his views of the case.

Having read the transcript, it certainly does appear that we’re heading for a 5-4 split, the issue is whether any of the conservatives will peel away.

I thought the best question was from Justice Ginsburg, who appeared to side with the challengers but asked a question that goes to the heart of the matter: Why are the courts involved in this anyway? Congress could prohibit Census questions about citizenship, but it hasn’t:

JUSTICE GINSBURG: Mr. Letter, the Congress has the primary control over what the census will be, not the executive, and Congress has been alerted to this citizenship question for some time, and it has done nothing about it. So one question is who should decide? Congress is silent. Should the Court then step in? [Tr. 81-82]


Dept Commerce v. New York – Census Case – Supreme Court Oral Argument Transcript – April 23, 2019 – Highlig… by Legal Insurrection on Scribd


Donations tax deductible
to the full extent allowed by law.


What can be more basic than asking if someone is a U.S. Citizen? It’s a no-brainer.

    4fun in reply to Elric. | April 23, 2019 at 9:30 pm

    So should producing ID when voting, but then dems would have a harder time stealing and manufacturing illegal votes.
    Much easier to rig everything before hand. Just ask Bernie about that.

    Milhouse in reply to Elric. | April 23, 2019 at 9:53 pm

    The purpose of the census is to determine the whole number of persons in each state, not the number of US citizens, men, women, people of particular ages or incomes, or anything else. So technically the only question on the census should be: “How many people live in this dwelling?”. But as Roberts said, we have been asking other questions for ever, so why not this one?

      puhiawa in reply to Milhouse. | April 23, 2019 at 10:04 pm

      It wasn’t set up to determine the number of vehicles you own manufactured before 1960 or the year and mileage on each and every vehicle owned, along with estimated gas and oil usage. But my clients regularly receive such requests from the census bureau along with threats for failing to answer. Some of the forms literally take 40 man hours to prepare.

      Tom Servo in reply to Milhouse. | April 23, 2019 at 10:06 pm

      I’ve been working to make clear the distinction you just made, which seems to be lost on an amazing number of people – the Constitution requires that Persons be counted, not citizens.

        alaskabob in reply to Tom Servo. | April 23, 2019 at 11:11 pm

        If Congressional district has 80% illegal aliens, are they accorded representation in Congress as a district with no illegal aliens? Abolitionists wanted slaves not counted… but now with illegals they get a proportional say in DC/

          Well, as the Constitution mandated a variable for representation in Congress in the form of the slaves count as 3/5ths clause, it is arguably not unconstitutional for a different factor (such as legality of residency) to be factored in. If I understand it right, illegal aliens were not counted for Congressional representation until after Eisenhower had the citizenship question removed from the Census and they could no longer be differentiated from citizens on the Census. To really confuse the issue, going the other way, Eisenhower also implemented “Operation Wetback” to impose mass deportation of Mexican and South American illegal aliens (targeted for only those apparently undesired illegal aliens).

          Milhouse in reply to alaskabob. | April 24, 2019 at 1:15 am

          Jhn, that is absolutely not true. You do not understand it right. Aliens, legal or illegal, have always been counted for Congressional representation, since the constitution requires it.

          And it is definitely unconstitutional “for a different factor (such as legality of residency) to be factored in.” It is not arguable at all; it would be blatantly, brazenly, defiantly illegal.

          Alaskabob, yes, that is exactly what it means. Just as now voters in districts with prisons are vastly overrepresented, because the prisoners are counted for representation but don’t vote. The same would be true of a district with a high birth rate, so there are a lot of children who are counted but don’t vote. That is how the founders in their wisdom set it up. I would not have done it that way. I would have counted only those eligible to vote by the laws of their state. But they disagreed, and it was their decision, not mine.

          iconotastic in reply to alaskabob. | April 24, 2019 at 3:53 pm

          That is the apportionment scam run by the Democrats. Pack a state with illegals and get more Representatives.

          I have read elsewhere ( that California would lose 6 seats in the House if there were no illegal aliens there.

          So even if the non-citizens are not voting (which the latest Texas election seems to contradict) their presence just grants more power to the residents who do vote.

        Exiliado in reply to Tom Servo. | April 24, 2019 at 7:20 am

        “… in such Manner as they shall by Law direct. “

          Milhouse in reply to Exiliado. | April 24, 2019 at 10:49 am

          They can direct the manner. They can not direct that only some persons shall be counted. The constitution explicitly requires that the whole number of persons be counted, and Congress has no authority to change that.

      healthguyfsu in reply to Milhouse. | April 23, 2019 at 10:24 pm

      I’m not sure why a question that asks whether or not someone is a US Citizen will lead to not being counted?

      If you fill out the form, then you will be counted in one column or another. Counted as a citizen or counted as a non-citizen…it’s that simple, really.

        Milhouse in reply to healthguyfsu. | April 24, 2019 at 1:18 am

        The argument is that including the question will frighten some aliens (legal or illegal) into not submitting the form, and therefore they will not be counted. It’s obviously true that some people will react that way, however irrationally. I just don’t see why this is a legal problem; where is it written that the secretary has a legal duty to ensure as many people as possible submit the form? It may be desirable, but a duty?

          CDR D in reply to Milhouse. | April 24, 2019 at 11:34 am

          Frighten them? Tough shit. If they can ask how many shitters I have in my house they can ask about citizenship without failing to count all persons.

      Colonel Travis in reply to Milhouse. | April 23, 2019 at 11:41 pm

      No census in our history has counted only the people in a state. This is what the first census of 1790 counted:

      Names of heads of families.
      Free white males of 16 years and upwards, including heads of families.
      Free white males under 16 years.
      Free white females, including heads of families.
      All other free persons.

      It did not take long before the number of questions ballooned. This is one paragraph from instructions given to census marshals in 1820:

      The purposes of the legislature in this act, subsidiary to that of obtaining the aggregate amount of the population of the United States, are, to ascertain in detail the proportional numbers of which it is composed, according to the circumstances of sex, color, age, condition of life, as heads or members of families, as free or slaves, as citizens or foreigners, and particularly of the classes (including slaves) engaged in agriculture, commerce, and manufactures.

      counsel in reply to Milhouse. | April 24, 2019 at 6:14 am

      Similar to most Constitutional provisions the actual scope is determined by Congress and case law . In this instance Congress gave the Secretary very broad discretion.

      12 U.S.C. § 5

      The Secretary shall prepare questionnaires, and shall determine the inquiries, and the number, form, and subdivisions thereof, for the statistics, surveys, and censuses provided for in this title.

      Congress provided criminal penalties for failure to answer questions.

      13 U.S.C 221 (a)

      (a)Whoever, being over eighteen years of age, refuses or willfully neglects, when requested by the Secretary, or by any other authorized officer or employee of the Department of Commerce or bureau or agency thereof acting under the instructions of the Secretary or authorized officer, to answer, to the best of his knowledge, any of the questions on any schedule submitted to him in connection with any census or survey provided for by subchapters I, II, IV, and V of chapter 5 of this title, applying to himself or to the family to which he belongs or is related, or to the farm or farms of which he or his family is the occupant, shall be fined not more than $100.
      (b)Whoever, when answering questions described in subsection (a) of this section, and under the conditions or circumstances described in such subsection, willfully gives any answer that is false, shall be fined not more than $500.
      (c)Notwithstanding any other provision of this title, no person shall be compelled to disclose information relative to his religious beliefs or to membership in a religious body

      ss396 in reply to Milhouse. | April 24, 2019 at 9:40 am

      The purpose of the census is for Congressional apportions for representation in the House. Are non-citizens entitled to Congressional representation under the Constitution? Humane treatment, certainly, but Congressional representation?

        Milhouse in reply to ss396. | April 24, 2019 at 10:52 am

        Yes, they are. The constitution explicitly says so. “The whole number of persons.” Not the whole number of citizens, or of persons eligible to vote, or of persons lawfully present, or anything else. A state is entitled to representation for every single person who is in it, including newborns, felons, aliens, and everyone else except “Indians not taxed” (a category which no longer exists); but only eligible voters get to decide who will represent all those persons.

          I don’t understand why people are having this argument. The governmment isn’t asserting that non-citizens shouldn’t count towards apportionment. The Constitution is clear on that matter.

          It is simply a fact that no one knows how many non-citizens reside in the country. To argue that we shouldn’t know doesn’t make sense. It’s a valid question, and the knowledge gained from it is valuable.

          iconotastic in reply to Milhouse. | April 24, 2019 at 3:47 pm

          It is sad to see downvotes here when a commenter is simply stating the facts of the Constitution.

      Bisley in reply to Milhouse. | April 24, 2019 at 10:53 am

      The main, and only legitimate, purpose of a census is for the apportionment of seats in Congress. Nothing beyond the number of people and citizenship should be asked — and it’s unlikely illegal aliens will answer truthfully, if at all. Other than citizens, the only people who should be counted are permanent legal residents (green card holders) — and as non-voters (as slaves were) they should be counted as 3/5 of a person. The rest, if not here temporarily and legally, should be expelled, not counted.

    No simpler than asking for their birth certificate. Or college transcripts. Or the conditions of their surrender of their law degree. Etc.

One quick note. That picture shows ruth’s racist beliefs.
When the movie of her life came out this was tweeted:

Ramesh Ponnuru
‏Verified account @RameshPonnuru

Ramesh Ponnuru Retweeted On The Basis Of Sex

Can’t wait to see the exciting scene where she hires her one black law clerk in 40 years

Fat lady or not, It ain’t over until John Roberts sings, unfortunately.

    puhiawa in reply to PrincetonAl. | April 23, 2019 at 10:00 pm

    Spineless, whimpering clown, seeking the praise of the ABA and Law Reviews and not giving the Constitution a second thought.

      Tom Servo in reply to puhiawa. | April 23, 2019 at 10:08 pm

      so allow me to make a prediction, that I can take credit or blame for: I say that John Roberts is going to rule in favor of the Trump admin, that the question CAN be asked.

        Just because the question is asked, does not mean anything can be done with the answer. More lawsuits even before Congress gets involved (and Congress has the right to be involved at both stages as in asking about whatever questions can be asked and what can be done as a result of those answers).

          Milhouse in reply to jhn1. | April 24, 2019 at 1:28 am

          What do you imagine could be “done with the answer”? The only thing that can be done with it is the same as is done with the answers to all the other demographic questions. They give us a better picture of the population’s composition. There is nothing else to do with it.

          The fact is that the reason Trump wants the question asked is probably exactly what the Dems claim it is. He wants a certain percentage of aliens to decline to answer, and therefore not get counted, and therefore cost their states some representation. All the arguments that this is not his intention are probably disingenuous. I just don’t care. I think he has the right to do this, and if it has the result he expects, tough luck for the Dems. It may be a lowdown tactic, but politics ain’t beanbag.

          iconotastic in reply to jhn1. | April 24, 2019 at 3:44 pm

          The number of non-citizens living in the USA seems to be an often-obfuscated number. I wonder if that is because the number of legal residents + H1b visa holders + avg student visas is already available and then estimation of the number of illegal aliens becomes feasible.

          And Democrats love their illegal aliens.

      Being compared to john roberts is an insult to spineless, whimpering clowns.

So what’s the D’rat’s goal with this chicanery? To rack up more apportionment of Representatives for “sanctuary states” by counting more illegals?

Maybe illegals should count as 3/5 of a person.

    JusticeDelivered in reply to tom_swift. | April 23, 2019 at 11:22 pm

    Illegals should count as 0.0000001 person, so should their anchor babies.

    The Ds goal is to continue to assign Congressional representation per gross population. That puts more Congressional representation in states with high illegal alien populations, and even district apportionment to some districts with equivalent gross populations but fewer citizens even eligible to vote.

    Milhouse in reply to tom_swift. | April 24, 2019 at 1:32 am

    Maybe illegals should count as 3/5 of a person.

    Good luck with amending the constitution. Me, I’d prefer to count only those eligible to vote under the laws of their state. I think the 14th amendment should have done that, instead of futzing around with penalties that proved ineffective.

Can one imagine that this country has come to the day when it is so despised by its own elite and the mob that they rule, that the court is considering whether it is illegal for the US Government to ask a resident if he is a citizen?

    CKYoung in reply to puhiawa. | April 23, 2019 at 10:29 pm

    “Dear United States Government,

    How many citizens live in our country?


    A Concerned Citizen.”


    “Dear person,

    We do not count citizens or even recognize citizenship anymore, it is an outdated concept and you might be a bigot for even asking this question. The answer is ‘we don’t actually know, and do not care, as long as we maintain power over everyone.’


    United States Government.”

    Valerie in reply to puhiawa. | April 23, 2019 at 11:35 pm

    They sure as hell had the power to demand, and if the parents refused to co-operate, assign a race to all of our children.

    The citizenship question is at least non-trivial.

Eastwood Ravine | April 23, 2019 at 11:07 pm

The person will be counted whether they answer Yes or No. States and Civil Rights groups are worried that the question will impact redistricting. Which leads to changes in the electoral college.

Easy and logical, the Left couldn’t be more transparent on this if they tried.

    Close The Fed in reply to Eastwood Ravine. | April 24, 2019 at 1:48 pm

    I think they’re really worried that American citizens will actually have a clue as to how many illegal aliens there are…

    Establishment types have been saying 11 million for 20 years…

    When the number – even though we expect many won’t answer – comes back as 35 million, the elites will have some ‘splainin’ to do.

Roberts or Kavanaugh, who will torpedo this one?

The reason Democrats are upset about adding the U.S. citizenship box to the Census form is that if many illegal aliens refuse to fill out the census form, there will be fewer “inhabitants” of that U.S. House District. (U.S. House Districts are required to have 1/435th – I think – of the total U.S. population. Many it’s 436 counting D.C., not sure.) Many federal welfare programs allocate their funds according to Census population. They’ll get fewer funds if their illegal aliens aren’t all counted.

It’s estimated that 70% of illegal aliens live in Democratically-controlled states such as California, NY, the New England states, Illinois, etc.

As a Muslim lady from Minnesota once said, “It’s all about the Benjamin’s, baby!”

    Milhouse in reply to Mark Michael. | April 24, 2019 at 1:34 am

    DC has no representation, so its inhabitants are not counted for this purpose. There’s therefore really no reason to include them in the census at all, but we’re already counting the rest of the country so we count them too, but they’re excluded from the apportionment calculation.

“Title 13, U.S. Code. Title 13, U.S. Code, does not specify which subjects or questions are to be included in the decennial census. However, it does require the Census Bureau to notify Congress of general census subjects to be addressed 3 years before the decennial census and the actual questions to be asked 2 years before the decennial census.”

“It is constitutional to include questions in the decennial census beyond those concerning a simple count of the number of people. On numerous occasions, the courts have said the Constitution gives Congress the authority to collect statistics in the census.”

Will the decision come in time for the printing?

I sure hope there’s a “Gender” question on the census form.

Not to forget a “Species” question.


I consider myself a latent penguin.

I hope there’s a box for that.

Still, once it’s all been sorted out, I am a legal citizen penguin.

It’s much ado about not a whole lot. No matter how much excitement they try to generate about each census, they manage to miss me. Every &^%*# time. I’ve lived in the same house at the same address for over forty years, at the corner of two ordinary roads in a town which has been here since the 1600s. I’ve had no name changes, use no novelty mailboxes which look like something else, and the rest of the government can find me just fine—IRS, BATF, FAA, etc. If they can’t get the census to a perfectly ordinary American who isn’t a difficult target, it really doesn’t matter all that much what questions I don’t get to answer. The fact is, government sets a pretty low performance bar for itself, but the census bureau can’t clear even that.

This should be a slam dunk. What does the law say? 13 U.S.C. §141(a) seems pretty clear. Congress has given the Commerce Secretary the authority to determine which questions shall be asked. If they wanted it limited, they could have specified the questions themselves. Why is there any argument about this?

You would think that a more accurate count of illegal aliens living in the US would be a urgent question for everyone. Many future decisions and policies ride on that information. But apparently it’s not in these days of misdirection, gaslighting, obfuscation, and the big lie.

Got the long form last time and answered but one question, which was how many people resided at my address. The answer at the time was “Five”. When a census worker came out in person to inquire further, I told her that the answer was still five and would be as many times as she came back.

Why would Hispanic US citizens not answer that question?

Well I wont hold my breath until the ruling is issued.

Also…for oral arguments are these in person in front of all the Justices or are they called in? Reason being…was RBG there or was a tv screen with her picture on it there in her place?

Justice Sotomayor: “And so that data is going to be more suspect, more prone to cross –to less reliability, and less accurate.”

Why Justice Sotomayor, because those being “disenfranchised” will all of a sudden become dishonest?
Rather insulting to them are you not?

casualobserver | April 24, 2019 at 10:43 am

The NYT can’t be subjective and on the level to save itself.

To them the SCOTUS liberal minority is questioning and fighting the good fight. The conservative majority is “deferring”. Meaning panty-wastes acquiescing to whatever the admin wants. Or so it is implied. I.e., if you aren’t fighting it, you are simply going along for partisan reasons.

Pitiful paper.

I always love this argument.

Why do the Dems and libs argue against a citizenship question included in the census? Because it is going to reduce their power by reducing their representation. How is that likely to happen? Because people illegally residing in the US will be less likely to answer that question. This will reduce the number of people in given congressional districts, and some states, many of which will be held by Dems. On the other hand, people will just lie, about their citizenship status, as no proof of status is required.

Now, the argument that the only question that can be asked and/or has to be answered is the number of people residing at a given address is flawed. The government has the right to asked any question that it chooses. The only ones which would be automatically prohibited would be those which would violate a person’s right to freedom from self incrimination. All other questions would have to be objected to on a case by case basis. And, a person can be compelled to answer specific questions, if it can be shown that there is a reasonable public interest value to an answer to that question. As the citizenship question does not inquire as to the legality of a person’s presence in the country, there would be no 5th Amendment violation in answering it.

One last thing to consider. While this is called a Census, it is actually a combination of a census question [how many residents occupy a given dwelling] with a number of other questions which provide information which is of use to various governments, and their agencies, in planning for the providing of services to a community. And, the government has the authority to ask those questions.

The one part of the Census which I do not like or approve of, it the part which requires the identity of persons residing in a dwelling to be provided. This has no reasonable public service value and is totally unnecessary. It is a clear violation of a person’s right to privacy. I would much rather see concerned citizens take this question to court and do all of us a favor. But, the Dems don’t care about privaacy.

“All of the court’s four liberals leftists sounded highly skeptical about Commerce Secretary Wilbur Ross’ decision, which three Obama-appointed federal judges found illegal ”

Just adding some context