Trump Admin seeks direct Supreme Court review of Census Citizenship Question case
“In light of the immense nationwide importance of the decennial census, if the district court’s ruling is to stand, it should be this Court that reviews it.”
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.
The Census case has an even more compelling time element, as the government argued in the petition:
…Certiorari before judgment is appropriate when “the case is of such imperative public importance as to justify deviation from normal appellate practice and to require immediate determination in this Court.”
Sup. Ct. R. 11.
This case satisfies that standard. It involves an issue of imperative public importance: the decennial census. As the district court correctly recognized, the decennial census “is a matter of national importance” with “massive and lasting consequences,” and it “occurs only once a decade, with no possibility of a do-over.” Pet. App. 11a-12a. The district court also correctly recognized that “time is of the essence” because the government must finalize the decennial census questionnaire for printing by the end of June 2019. Id. at 12a. Both the government and respondents thus need a final resolution of the issues presented in this case by that date.
It is exceedingly unlikely that the parties could obtain full review in both the court of appeals and this Court by the end of June. Even highly expedited briefing and decision in the court of appeals likely would leave insufficient time for petition- and merits-stage briefing, argument, and decision in this Court this Term. Accordingly, as a practical matter, a writ of certiorari before judgment is likely the only way to protect this Court’s opportunity for plenary review.
Equally important, the government stressed that on the merits the District Court’s actions were unprecedented:
The issues presented in this case also merit this Court’s review. This Court already has granted review of the second question presented, involving the propriety of the district court’s orders expanding discovery beyond the administrative record and compelling the depositions of high-ranking Executive Branch officials, including Secretary Ross. See No. 18-557.
The first question presented also merits this Court’s review. The judgment below takes the unprecedented step of striking a demographic question from the decennial census and thereby preventing the Secretary of Commerce from exercising his delegated powers to “take a decennial census * * * in such form and content as he may determine.” 13 U.S.C. 141(a). In entering its order, the district court necessarily decided several subsidiary “important question[s] of federal law that ha[ve] not been, but should be, settled by this Court.” Sup. Ct. R. 10(c)…..
Indeed, to the government’s knowledge, this is the first time the judiciary has ever dictated the contents of the decennial census questionnaire. Cf. Pet. App. 416a (acknowledging that lower courts have, until now, “universally rejected” challenges to the census questionnaire “as meritless,” and citing cases).
Absent certiorari before judgment, the court of appeals likely would have the final say on these critical issues given the June 2019 deadline for finalizing the census form. In light of the immense nationwide importance of the decennial census, if the district court’s ruling is to stand, it should be this Court that reviews it. This Court previously has granted certiorari before judgment to promptly resolve important and timesensitive disputes.
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.
————–
U.S. Dept Commerce v. NY St… by on Scribd
DONATE
Donations tax deductible
to the full extent allowed by law.
Comments
Good. I’m getting a little tired of a few dozen Leftist judges scattered across the country who think they’re President.
How can a citizenship status on the census form possibly be illegal/unconstitutional? The government routinely put that very question on at least some census forms.
It can be ruled illegal/unconstitutional in the name of guaranteeing victory for the Left. And that is the basis of the ruling.
Tax powers trump everything now, according to Roberts “No bias here” guy…
PS, what do tax courts do now, since everything is fungible in regular bullshit court?
Was asked in 1930, 1940, 1950, 1960. In 1970 on only 5% of the forms.
1980 Long questionnaire, doesn’t say what percentage got long or short
Asked in 1990
Was asked on 2000 long form
Apparently 2010 was the first and likely only census the question wasn’t asked. Gee, Obama was POTUS in 2010. Wonder why it wasn’t asked….
Now, suddenly, the courts want to dictate questions? Maybe they want to dictate races and languages- there likely aren’t enough to cover all the bases. Only 14 races on the 2010 form- and if of Hispanic origin, only 3 choices then you has to choose other.
And let’s not forget the 67 different genders- everyone needs to make a choice, gotta have all them bases covered.
This reminds me of a question I’ve been meaning to ask. What is the legal basis for including non-citizens in the count used for congressional apportionment?
https://www.heritage.org/immigration/commentary/why-should-states-protect-illegal-immigrants-be-rewarded-more-political
Interesting. What’s the current status of that lawsuit?
Anyway, it’s about whether illegal aliens should be counted — and I definitely agree that they should not — while my question concerns non-citizens who are legally resident in the US. The article mentions the 14th Amendment’s “one person, one vote” equal representation standard and argues that illegal aliens shouldn’t be counted for congressional apportionment because they can’t legally vote. But aren’t all non-citizens, including those who are here legally, barred from voting in federal elections?
Accidentally down voted, my apologies.
Your question is a good one that I’ve often wondered. There is the ‘No taxation without representation’ bon mot that would seem to favor voting in exchange for taxes.The law seems to limit voting only to citizens whether or not they pay taxes.
I’d prefer to see all legal persons who pay taxes vote rather than citizens who do not pay taxes.
StableSort, Do you think that George Washington was paying taxes to King George as he crossed the Potomac? Do you think the tea party in Boston paid taxes on the tea? Do you think it’s noble to pay taxes for studies of homosexuals drinking in bars in Brazil or China or wherever it was, while our government borrows more money then has ever been borrowed in the history of mankind, to do so?
Do you think a person who always does what they are told is the kind of person who will break the mold? Just wondering…
CorkyAgain: What is the legal basis for including non-citizens in the count used for congressional apportionment?
14th Amendment: “Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed.”
CorkyAgain: The article mentions the 14th Amendment’s “one person, one vote” equal representation standard and argues that illegal aliens shouldn’t be counted for congressional apportionment because they can’t legally vote.
Neither can children. However, the 14th Amendment requires a counting of “persons”, not voters or adult citizens.
Doesn’t that interpretation open the door for the Left’s argument that illegal aliens should be counted, since they also are “persons” living in the respective states?
(I’m just playing Devil’s Advocate here. Someone please show me the way out of this thicket!)
CorkyAgain: Doesn’t that interpretation open the door for the Left’s argument that illegal aliens should be counted, since they also are “persons” living in the respective states?
That’s clearly what the Constitution requires. A statute saying they aren’t “persons” to be counted would be patently unconstitutional. If you don’t want to count aliens residing in the U.S., you have to change the Constitution. The 14th Amendment is considered the foundation of the reconstituted American Republic after the Civil War tore the country apart.
As Zachriel said, illegal aliens, as well as tourists, are counted, always have been, and the constitution explicitly requires them to be.
Sorry but I have to challenge you on that. The Supreme Court has never required apportionment by total population. Whatever the states are doing with the illegal count, they are doing it voluntarily, not pursuant to constitutional mandate. If you have a case that says otherwise please cite it. If not, then just admit your error.
AJR: The Supreme Court has never required apportionment by total population. Whatever the states are doing with the illegal count, they are doing it voluntarily, not pursuant to constitutional mandate.
Federal apportionment is based on a federal census as required every ten years by Article Two of the U.S. Constitution, not a state census.
14th Amendment: “Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed.”
I’m afraid you do not understand. My comment referred to the fact that states are NOT required to include illegals when drawing district lines. The Supreme Court has never so held.
Ant it may interest you to know that several states do exclude non-permanent residents.
Didn’t intend “ant” but now for some strange reason I’m growing to like the typo.
AJR: My comment referred to the fact that states are NOT required to include illegals when drawing district lines.
You seem to be conflating apportionment with redistricting.
In Evenwel v. Abbott, the Supreme Court ruled that using total population for redistricting is constitutionally sound, but didn’t rule on using other methods, such as voting population.
As Zachriel wrote, states do not do apportionment. It is done by the federal government, and the constitution explicitly requires that it include everybody who is present in a state on census day, no matter who they are or who they got there.
Districting has nothing to do with this. The constitution doesn’t require districting at all; as faras the constitution is concerned a state may choose to elect all its representatives as one, whether proportionally, by slate, or any other method that treats all voters equally. If it does choose single-member districts, then each district must have approximately the same population, but it can choose whether to use total population, people eligible to vote, registered voters, or actual voters. (Federal law, however, does require single-member districts.)
Is this a tag team? or maybe you are the same person? Don’t know but let’s just start with tourists? Tourists are counted? Let’s just hope Kim Jong-un is visiting on Census day. And as for “apportionment,” the Census counts illegals pursuant to its Residence Rule. Arguments for and against the Constitutionality of this administrative rule can be made but unlikely to be resolved here. As for districting, illegals may be ignored.
Tourists are counted? Really? Some things are open to debate, some are just plain wrong. That’s just plain wrong.
Actually I was wrong about tourists. The US census, unlike those of many/most countries, does not count foreign visitors whose usual residence is not in the USA, and does count US residents who were abroad on census day. It seems the census bureau decided in 1790 that “the whole number of persons in each State” means those whose usual residence is in that state, even if they’re currently somewhere else.
And if you wonder whether Zachriel and I are the same person you must be very new here.
It’s not just the 14th. The original constitution said the same thing, except it said “the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons”. There was no need for the 14th to amend this, since there are now no “other persons”, but they decided that the very mention of “free persons” and “other persons” was offensive so they removed it.
It’s what the constitution explicitly requires. “The whole number of persons” means “the whole number of persons”. Aliens are included just as are children, felons, women before they got the vote, and other non-voters.
14th Amendment: “Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed.”
Is ‘not taxed’ relative here?
RedEchos: Is ‘not taxed’ {relevant} here?
The term applied to Indians, many of whom lived apart from U.S. society, and were not taxed. Some had abandoned tribal life and integrated into U.S. society, and were taxed. Since 1924, all Indians have been U.S. citizens.
No, the phrase is “Indians not taxed”. They are explicitly excluded from the count; everyone else is explicitly included, including aliens no matter how they got here or how long they intend to stay. (The category of “Indians not taxed” no longer exists; all Indians are now US citizens, subject to federal taxation, and are therefore counted in the census.)
Not accurate. States are not being required to include illegals by the Supreme Court. At least not yet.
Again, states do not do apportionment, so they’re obviously not required to do it in any particular way. The federal government, which does apprortionment, is required to include everyone.
Hmm..”Required”? Required by an administrative rule? Maybe. Required by the Constitution? Open to debate.
Oh and, as for my use of “required,” I meant that states are not required, at least by the Supreme Court, to include illegals when redistricting. But by all means, feel free to launch into a lecture about how states don’t conduct their own census.
Milhouse: The federal government, which does apprortionment, is required to include everyone.
AJR: Hmm..”Required”? Required by an administrative rule? Maybe. Required by the Constitution? Open to debate.
It’s not open to reasonable debate. Per the U.S. Constitution, apportionment is based on a count of all persons.
14th Amendment: “Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed.”
No, it’s what a census bureaucrat may require. What the constitution may require is open to debate.
What leverage does President Trump use he lost the house, the shut down and the SOTUS.
National Emergency; if some Obama judge nixes that plan, then I guess Trump would have invade Mexico with troops and shut it down that way.
Saw this somewhere on the intraweb (so must be true) but Trump could get ahead of the game and get in front of a friendly court for a ruling the national emergency is kosher to head off all the eventual Democrat challenges.
If a different judge says no, then I believe that’s it
The Jack Azzez always self identify!
I think i can guess RBG’s vote.
Have you seen proof of life?
Well if she’s dead she’ll be voting leftist by default…
Well, it’s a tax, so…
Ah yes, the citizenship question.
Where the ‘legal theory’ is that a question that has been asked for decades is now not allowed, because Orange Man Bad.
I think we have passed the point where a number of District Judges need to be placed on probation and have their decisions vetted by an adult BEFORE being issued 😉
They should get the 3 strike rule: Get three of your rulings overturned and you’re out!
Just transcribe questions 12a and 12c from the NICS form: 12a) “Country of citizenship?”
and 12c) “Are you an alien illegally, or unlawfully in the United States?” If it’s Constitutional to ask on Form 4473 then it should be Constitutional anywhere the government wants to ask it!
The thought that such a basic question could even be, in a fantastical allegory, considered unconstitutional, displays how pathetic our country now is, that we can’t even ASK if we are now engaged in a SUICIDE PACT.
We demand Proof of Life on RBG before ANY further SCOTUS actions.
If this were Trump’s second term I would like Trump to look at that portrait of Andrew Jackson he has hanging and start thinking “John Marshall has made his decision; now let him enforce it!”
“Are you an American citizen?” I’ve been asked that question for every job application I’ve filled out.
Congress grants the Secretary of Commerce delegated powers to “take a decennial census * * * in such form and content as he may determine.” 13 U.S.C. 141(a).
But now it’s verbotten for the Feds to ask “Are you an American citizen?” during a Constitutionally mandated census?? Why? Because some lawyers in black robes cloistered away in District 2 usurped Congressional authority to re-write federal law for all the land?
I’ve never been a big fan of busting up and shaking up the district courts, but I am fasting becoming a cheer leader in this age of Trump Derangement Syndrome.
As a Native born NewYorker I remember being asked to provide proof of citizenship to various Human Resources departments. It makes sense to count and distinguish the citizens and non-citizens across the country.
Leadership from the Chief Justice? Fuhgeddaboudit.
Roberts is absolutely useless. He has no chracter, vision, or integrity. I’m just here for the money.
To everyone above going on about how ridiculous it is for the question to be ruled unconstitutional, you have no idea what you’re talking about, because no judge has said such a thing. The judge in this case explicitly rejected the constitutional arguments. He struck down the question because the evidence showed that the Secretary made the decision to add it without sufficient reason. Government agencies can’t make any changes just because they feel like it. A good reason was needed in 1960 to remove this question and now a good reason is needed to put it back. That’s basic law.
Sorry, but federal judges can’t usurp the discretionary prerogatives of executive branch officers for no reason. Nor can they create art. III standing where none exists. How’s that for unconstitutional?
You have it backwards. It is well established law that federal agencies may not act arbitrarily or capriciously, and that if they do judges can stop them.
No, there actually are limits on the power of the federal judiciary. A judge cannot simply assume power to act where a matter is committed to the discretion of the executive or decide that something is “arbitrary or capricious” simply because he would have reached a different conclusion. The arbitrary and capricious standard is extremely deferential, very difficult to overcome. It wasn’t in this case. Not to mention that there was no standing, a small point to be sure.
AJR: A judge cannot simply assume power to act where a matter is committed to the discretion of the executive …
The Congress granted judicial oversight of how regulations are proposed and established.
Zachriel: “The Congress granted judicial oversight of how regulations are proposed and established.”
It bears mentioning additionally that Congress has not literally granted the judiciary “oversight” powers over federal agencies (not even sure they could). At least speaking in terms of the APA, Congress in general has provided for judicial review of final agency actions. This is not carte blanche to reverse any action with which a particular judge might disagree.
AJR: This is not carte blanche to reverse any action with which a particular judge might disagree.
The court can reverse an action because it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law” or if “unsupported by substantial evidence” or “unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court.”
5 USC §706.
Zachriel: The court can reverse an action…5 USC §706.
A little knowledge can be a dangerous thing. You might want to educate yourself on how the limited scope of federal review under the APA is actually applied by the federal courts. You might also consider learning something about art. III standing. I would recommend reading some of the briefs in present case.
AJR: You might want to educate yourself on how the limited scope of federal review under the APA is actually applied by the federal courts.
This is where you provide specifics rather than waving your hands in the general direction.
I guess then you’ve decided not to take my advice and try to educate yourself?
AJR: I guess then you’ve decided not to take my advice and try to educate yourself?
Fair enough. You can’t defend your position.
Zachriel: “The Congress granted judicial oversight of how regulations are proposed and established.”
Congress delegated the authority to administer the Census Act to the Secretary of Commerce, not the federal judiciary. The APA does not entitle federal judges to substitute their policy choices for that of agency officials. Nor does it create art. III standing where none exists.
AJR: Congress delegated the authority to administer the Census Act to the Secretary of Commerce, not the federal judiciary.
Regulations promulgated by the Secretary of Commerce are subject to judicial review under the Administrative Procedure Act. As such, they can’t be “arbitrary or capricious”. Guess what? There’s a *procedure* that must be followed when implementing new regulations.
Zachriel: Guess what? There’s a *procedure* that must be followed when implementing new regulations.
Guess what? There are statutory requirements limiting the scope of judicial review of final agency action under the Administrative Procedures Act. Guess what again? There was no standing. Under the APA, the constitution, the judge grossly exceeded the scope of his limited power of review in this matter.
AJR: There was no standing. Under the APA, the constitution, the judge grossly exceeded the scope of his limited power of review in this matter.
Under what doctrine? The court considered standing and the argument appears sound, concluding that plaintiffs “have proved by a preponderance of the evidence that they will be harmed”.
If you’re honestly interested, then read the government’s brief.
Better yet read some casebooks. Then we can discuss it when you have a better grasp of the issues.
AJR: Then we can discuss it when you have a better grasp of the issues.
Fair enough. You can’t defend your position.
Against my better judgment but since it is a little cold outside and I have nothing better to do at the moment, let’s go over some of the arguments, drawing principally from the government brief you seem disinclined to read. The injuries alleged are merely conjectural or hypothetical, not fairly traceable to any government action. The future loss of a congressional seat through reapportionment? Loss of government grant money? Not concrete and particularized injuries that are actual or imminent as required under the Constitution. Also, any injuries resulting from an undercount are attributable only to the actions of individuals who unlawfully refuse to fill out or return the census form, not the citizenship question’s presence on the census form. Moreover, questions committed to agency discretion under law are not reviewable under the APA. The Census Act simply instructs the Secretary to take a decennial census. There are no standards under the Act or the Constitution by which to judge the lawfulness of including (or excluding) a given question on the census form. Further, the lower court misapplied the arbitrary and capricious standard. The Secretary used his discretionary authority to conclude that combining administrative records with a direct question on the census would provide the most complete and accurate data and the court erred by substituting its own judgment in concluding that administrative records alone would be more accurate. The court’s determination that the Secretary’s failed to make an adequate report to Congress was also not judicially reviewable. This is an issue for Congress not the Courts.
AJR: There was no standing.
AJR: The injuries alleged are merely conjectural or hypothetical, not fairly traceable to any government action.
Findings of fact:
“Plaintiffs have proved that the addition of a citizenship question will cause precisely that outcome {undercount} with respect to noncitizen and Hispanic households.”
“Plaintiffs have also proved that the net differential undercount of people who live in noncitizen households will translate into several further concrete harms. First, the Court finds by a preponderance of the evidence that the addition of a citizenship question will cause or is likely to cause several jurisdictions to lose seats in the next congressional apportionment and that it will cause another set of jurisdictions to lose political representationin the next round of intrastate redistricting.”
The point of the appeal, at least with respect to standing, was that the findings of the supposed injuries do not support Art. III standing under established constitutional doctrines. In other words, the court erred. It is the application of these misplaced findings to the legal standards that is at question. Simply to quote the findings is no answer. As noted in the government’s petition, never before has a court found standing to challenge the inclusion of a question, as opposed to the method of tabulating data for reapportionment after completion of the census. One fundamental flaw seems to be that the alleged injuries result (if at all) from the possibility that unidentified third parties might independently and unlawfully refuse to answer the census. That is not to say there aren’t other flaws, legal and factual, in the ruling, but your response fails to address any argument. As someone once wrote: “Fair enough. You can’t defend your position.”
AJR: That is not to say there aren’t other flaws, legal and factual, in the ruling, but your response fails to address any argument.
Um, your claim was that “The injuries alleged are merely conjectural or hypothetical, not fairly traceable to any government action.” The court’s findings of fact contradict your claim.
This is similar to how you conflated apportionment with redistricting.
I’m not sure whether you honestly don’t understand or are just being contrary. I’ll give you some credit and lean toward the latter. At any rate, it doesn’t matter. The point of having any meaningful exchange is past (if it was ever here), so I’m finished with this thread until the Supreme Court reverses this nonsense. Incidentally, anyone who thinks tourists are counted on Census day has no business lecturing anyone.
AJR: Incidentally, anyone who thinks tourists are counted on Census day has no business lecturing anyone.
We made no such claim. Milhouse forthrightly corrected his error, while you have yet to correct your own repeated error conflating apportionment with redistricting.