Is Asking About Citizenship on the Census Unconstitutional?

May 02, 2019

 

Would adding a citizenship question to the 2020 census—which a lawsuit argues could dissuade people from responding to it—violate the Constitution’s enumeration clause, which requires that an “actual enumeration,” a counting, of all Americans be performed every ten years? Does it matter how and why the question is added? Tom Wolf, Counsel at the Brennan Center for Justice, and John Eastman, Professor at Chapman University School of Law, join host Jeffrey Rosen to debate these questions. They discuss the pending Supreme Court case Department of Commerce v. New York, in which numerous states are suing Secretary of Commerce Wilbur Ross over his decision to add a citizenship question to the census.  Wolf and Eastman consider how Ross’s motive for asking about citizenship on the census might affect how the justices’ rule on the case, and offer a helpful historical deep dive into the census is itself and  its inclusion of questions regarding citizenship.

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PARTICIPANTS

John Eastman is the Henry Salvatori Professor of Law & Community Service at Chapman University’s Fowler School of Law. He is also a Senior Fellow and Director of the Center for Constitutional Jurisprudence at the Claremont Institute.

Tom Wolf is Counsel with the Democracy Program at the Brennan Center, where his work focuses on redistricting and the census. He was previously a member of the Supreme Court & Appellate group at Mayer Brown LLP, where his practice focused on constitutional litigation and legal strategy. He recently published “A Critical History of the United States Census and Citizenship Questions” in the Georgetown Law Journal.

​​​​​​Jeffrey Rosen is the President and Chief Executive Officer of the National Constitution Center, the only institution in America chartered by Congress “to disseminate information about the United States Constitution on a nonpartisan basis.” 


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Article I, Section 2 by Bradley A. Smith and Daniel P. Tokaji

This episode was engineered by Greg Scheckler and produced by Jackie McDermott. Research was provided by Lana Ulrich, Kelly McGovern, and Jackie McDermott.

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TRANSCRIPT:

This transcript may not be in its final form, accuracy may vary, and it may be updated or revised in the future.

Jeffrey Rosen: [00:00:00] I'm Jeffrey Rosen, President and CEO of the National Constitution Center, and welcome to We The People, a weekly show of constitutional debate. The National Constitution Center is a non-partisan, non-profit chartered by Congress to increase awareness and understanding of the Constitution among the American people. Today, we explore the case Department of Commerce versus New York, which arose after the commerce secretary, Wilbur Ross, announced that the 2020 census would include a new question asking people whether or not they are US citizens.

 Several states, including New York and California, challenged the addition of the question. They argued that it violates the Enumeration Clause of the Constitution, which says that the government must perform an actual enumeration of the whole number of persons in the United States every ten years. Joining us to explore the fascinating constitutional and statutory questions on both sides of this important case, we have John Eastman. He is Henry Salvatori Professor of Law and Community Service at Chapman University's Fowler School of Law, where he previously served as dean. He's also senior fellow and director of the Center for Constitutional Jurisprudence at the Claremont Institute. John, it's wonderful to have you back.

John Eastman: [00:01:14] Jeff, it's always a pleasure. It's a terrific program.

Rosen: [00:01:16] Thank you. Tom Wolf is counsel with the Democracy Program at the Brennan Center, where his work focuses on redistricting and the census. He was previously a member of the Supreme Court & Appellate group at Mayer Brown, and he recently published a Critical History of the United States Census and Citizenship Questions in the Georgetown Law Journal, which I recommend to We The People listeners. Tom, it is wonderful to welcome you to the show.

Tom Wolf: [00:01:40] Thanks for having me here. I'm happy to be here.

Rosen: [00:01:42] Let me begin with a question that Justice Ginsburg asked at the very beginning of the oral argument in this case. She said, “Can we just go back a bit. Why was the citizenship question dropped in 1960 and remained off for all the decades after that?” Tom, you'd just written a critical history of the citizenship question. What's the answer to Justice Ginsburg's question?

Wolf: [00:02:05] The answer to Justice Ginsburg's question I think requires a little bit deeper history on what was going on generally speaking with the census between about 1820 and 1950. Between those two decades, what the census was trying to do was basically two things, one, count everyone in the country, and two, increasingly over that 100 or 140 year time period was collect other information that Congress thought might be useful. After the 1950 census, the bureau was finally able to apple various social science developments that had emerged over the course of the early 20th century, chief among them statistical sampling. What the bureau realized was that this approach to the census where we bundled together the enumeration function with this data gathering function had produced the census that was incredibly costly, very difficult to administer, and ridden with accuracy problems.

 So what the bureau decided to do after 1950 was separate the enumeration function from the data gathering function, so it created what is now known as the short form census, which is just a small number of questions. That is the form that is used to conduct the enumeration, and that goes to every housing unit in the country, now. It shifted all of these other questions, including an iteration of a citizenship question from the census form to what was ultimately known as the long form. The long form was ultimately replaced by the ACS. The important thing is that those forms, whatever form, no pun intended, they took over that period of time, were sample surveys, so they only went to a subset of the population.

 The bureau, with this background commitment to shaving down the census to maximize the accuracy of the head count basically audited all the questions that had been on the census up to 1950 and started discarding them. When it got to the citizenship question, it said basically, there's no demonstrated need for this. There's no interest in it, so it's going. As a result it was not on the 1960 short form and was not on the longer sample survey that went out in 1960. Ever since that point, there had been various attempts at either directly or would've in their ultimate consequences require a citizenship question to be put on the short form, and in each case, bureau leadership steadfastly resisted it, and the main reason was because they had this understanding that asking the citizenship question would ultimately endanger the accuracy of the enumeration because of the ways in which it would raise concerns or associations with law enforcement in the eyes of many of the people who would be asked to fill out the question.

Rosen: [00:04:57] John, do you have anything to add or a different answer to the Justice Ginsburg question, namely why was the citizenship question dropped from the census after 1950, and can you also tell our listeners why the Secretary of Commerce, Wilbur Ross, decided to reinstate it?

Eastman: [00:05:16] Sure. Well, I would take issue a little bit with the phrasing of Justice Ginsburg question as Tom correctly noted. The citizenship question had been in place from 1820 to 1950 on the census form. What the Eisenhower administration did leading up to the 1960 census was separate the forms out to the short form that would go to every single household and the long form that would go to a subset of households, but they were both still census forms. They were both still aimed at obtaining the enumeration as required by the constitution every ten years. The long form continued to ask the citizenship question all the way up until 2000, and then that citizenship question was also added to the American Community Survey in 2006 under George W. Bush's administration, but not asked on the short form, long form either in 2010 under the Obama administration.

 So what we have is the removal of the citizenship question entirely from the census forms for the first time in 2010. Secretary Ross has restored it to what it had been historically from 1820 all the way up until 2000 on one of the two enumeration census forms.

Rosen: [00:06:39] Tom, I'll ask you to respond to that, and then tell us why you believe that the Secretary restored the citizenship question and why the challengers are saying that the restoration is illegal.

Wolf: [00:06:49] Yeah, I think it's an important qualification here is that when Secretary Ross says that he's reinstating the citizenship question, that statement is misleading at best for a few reasons. As a point of fact, and this is something that is developed at much greater detail in my recent publication with Georgetown, the citizenship questions have come on and off the long form, excuse me, came on and off the form that was used to conduct the enumeration between 1820, which was the first time a naturalization status question was asked, and 1950. So for instance, in 1840, there was no citizenship question. In 1850, no citizenship question. 1860, no citizenship question. On and on, 1880, no citizenship question.

 So it came on and off the form over the course of time. The way in which the question was phrased, the purpose of the question changed substantially over this period of time, and another important thing to keep in mind is that what Secretary Ross wants to do is ask a question that will elicit citizenship information from every single person in the country. The census has never attempted to do that. When citizenship questions were asked as part of the enumeration form, they were never asked of more than a subset of the population when they were asked at all.

 So Secretary Ross's question is historically unprecedented in the sense that his proposing to ask for the citizenship question of everyone in the country and the census has never before done that. As a result, I don't think it's entirely correct for Secretary Ross to say that he's reinstating the citizenship question. What he's asking to do is to put a universal citizenship inquiry onto the 2020 census.

Rosen: [00:08:46] John, why did the Secretary put this question back on the census, and what are the challengers saying about why it's illegal?

Eastman: [00:08:54] Well, I can think of a couple of reasons. I, of course, am not privy to the internal communications or thinking of the Secretary, but in 2016, a Supreme Court decided an important case dealing with whether reapportionment had to be based on total population or citizen population or voting age population. The case was Evenwel versus Abbott. What the court held there was that the constitution doesn't require that there be citizen based accounting for reapportionment, but it didn't foreclose that. Of course, any state jurisdiction that wants to base their reapportionment internally for their state legislature on citizen population rather than total population would need citizenship data, not at the macro level as the American Community Survey would give us based on statistical sampling, but at the granular, precinct level. You can only get that by including the citizenship question on the census form.

 I also think it's extremely important for us to get a better handle on how many immigrants we have in this country. The speculations, the estimations vary widely, not just on the question of immigrants, but on the question of illegal immigrants, from 11 million to 20 million or more. This seems to be a rather important fact for us to have as we embark upon visiting revisions to our immigration policy. I don't know why people are so afraid of learning what our citizen population is. Now, the challenges are based on a couple of arguments. One, that because folks that have an illegal immigrant in the household might be afraid to announce to authorities what their citizenship status is, and therefore not respond to the census question and therefore undermine the constitutionally required enumeration.

 But I think that concern is overblown. First of all, it's illegal to use any information on the census for other law enforcement purposes, but second, the Census Bureau historically has done a very comprehensive job of following up with people who do not return census forms in order to get as full account as humanly possible. I don't have any indication whatsoever that the 2020 census and the Census Bureau's efforts in that regard will be any different than it has been in the past.

Rosen: [00:11:41] Tom, as John said, the challengers are arguing that the addition of the citizenship question might suppress the response rate to the census. The district court concluded that the citizenship question would reduce non-citizen response rate by 5.1%. By one government estimate, about 6.5 million people might not be counted if the citizenship question is allowed, but those estimates are hotly contested. Explain to us how the court is evaluating this challenge under both the Administrative Procedure Act and the Enumeration Clause of the constitution. What are the legal standards that the court is using to decide whether or not the addition of that question violates the law and the constitution?

Wolf: [00:12:23] Yeah, I think it's important to keep those legal questions at the forefront when we start asking about the evidence that exists regarding the undercounts. So let's take the APA first. The APA may seem as if it is kind of an obscure or kind of deep in the weeds technical, bureaucratic regulation, but it exists to serve a couple of important, key purposes, chief among them when Congress, who are our delegated representatives, in term delegates authority to make rules that govern our lives, the agencies, we expect the agencies to act in ways that are reasoned, reasonable, and transparent among other things in addition to adhering to other laws. So when the court is hearing an APA challenge, mainly what it's asking is, did the agency act in a way that seems reasonable in light of the information that was in front of the agency head at the time that the decision was made?

 In this case, Secretary Ross was the ultimate decision maker in terms of whether to add a citizenship question. All of the information that was presented to Secretary Ross established that there would be, according to the studies conducted by the Census Bureau, and in addition to those studies, the sort of general knowledge that the Census Bureau builds up over the course of time about how to conduct a survey. I mean, ultimately, they are professional survey takers who have a deep, social scientific pedigree. All of that evidence that was assembled for Secretary Ross said that adding a citizenship question would lower response rates. There was no evidence on the other side suggesting that adding the question would not lower response rates or even improve response rates. I can't imagine a world in which it would improve response rates, but for argument's sake, there could have been information like that.

 There wasn't. So when Secretary Ross decided to add the question, he was acting in defiance of all of the facts that were assembled in front of him. In other words, he acted contrary to fact and he acted contrary to logic. That's the sort of basis of the APA review. Now, there were conversations for instance at the court that well, what if there was this rationale or that rationale? But the fundamental point here is that when we're talking about APA review, we need to look at and scrutinize what Secretary Ross said was the basis for his decision at the time.

 The Enumeration Clause claim, the basic idea is that the constitution requires Congress to conduct what's referred to as an actual enumeration every ten years. The Supreme Court over the course of time has developed case law to interpret what the Enumeration Clause requires and what sort of action now by the Commerce Secretary many years at the framing, the Congress itself ran the census. But over the course of time, the Census Bureau was created and it was shuffled under the Commerce Secretary, so now it's the Commerce Secretary. What the Commerce Secretary does has to bear, this is more or less a direct quote, “A reasonable relationship to the conduct of an actual enumeration.” So the basic claim in these cases under the enumeration clause is that the citizenship question cannot be constitution because it doesn't bear a reasonable relationship to an actual enumeration, and the underlying reason for that is because adding the question will degrade the accuracy of the enumeration rather than either enhance it or provide a neutral factor. Therefore, it contradicts the constitutional command.

Rosen: [00:16:10] Thanks so much for laying out the Administrative Procedure Act challenge and the Enumeration Act challenge. John, let's first dig into the Administrative Procedure Act question, and as Tom laid it out, the Administrative Procedure Act requires a bunch of things regarding the census. First, it requires the use of administrative records rather than adding a new and direct question. Second, it requires that the secretary propose the subject of census questions to Congress three years before the census takes place, and third, it requires a transparent disclosure of reasons rather than pretextual reasons. At least those are the three conditions identified by the challengers. Is that an accurate description of the requirements of the Administrative Procedure Act, and how does that feed into this case?

Eastman: [00:17:03] Well, I think so, but there's a preliminary question as well, and the Administrative Procedure Act more broadly also says that there is no, not even judicial review for any action, quote, “Committed to agency discretion by law,” close quote, and both the constitution, which sets out the Enumeration Clause in article one, section two, that there has to be an actual enumeration, quote, “In such manner as they, Congress, shall by law direct.” Then Congress has, by law, directed the enumeration under Title 13, Section 141 of the US code. They have delegated to the Secretary of Commerce the authority to conduct the census in such form and content as he may determine and quote, “To obtain such other census information as necessary.”

 Now, both of those things are pretty clearly committing to agency discretion the determination of what to include on the census. So under the APA, there might not even be the opportunity for judicial review. But let's get over that hurdle. One of the things that came out in the oral argument at the Supreme Court was whether we should be deposing Secretary Ross to find out what his true motives were or whether the review is limited to what he actually said in the record. I think the court came down pretty clearly that on an Administrative Procedure Act review, we look at what the record is. We don't look behind to a legislator's motives or anything like that. That would be opening up a hornet's nest that the Supreme Court has repeatedly shied away from. I think they're going to do that here as well.

 So the question is, is the elected head of the agency, or the duly appointed head of the agency by the elected president to make the decision, or is he bound by advice coming from unelected bureaucrats that are in the agency before he got there? This is a very important question for self-governance, because if the secretary can't reject the advice he's getting from unelected bureaucrats in the agency he's appointed the head, the elections don't matter anymore.

 So I think it's an extremely important question, and just judging from the questions we heard at oral argument, I suspect the Supreme Court at least a five member majority of the Supreme Court, perhaps more, is going to side with Secretary Ross here and say, look. You had some input from the bureaucrats in your department that said this might lead to a lower response rate, but you weighed that lower response rate with the ability to mitigate against that by more aggressive efforts on second and third tries to get the information the enumeration needs, and the importance of gathering information about citizenship and where citizens are located so that if any jurisdiction actually wants to based their reapportionment on citizens, which by the way, the consent theory of government set out in the Declaration of Independence would seem to require, then we ought to be able to do that. I think that's where the court's going to lead, and I think under any standard under APA review, the reasons he gave, the formal reasons he gave for the decision here easily pass muster.

Rosen: [00:20:36] Tom, at the Supreme Court, Justice Kagan said, “I don't see any reasons for the secretary reaching his decision. Instead,” she said, “It seems more as if the Department of Justice's need for the citizenship data was contrived.” Lots of civil rights officials she observed have never asked for this data. Tell us about your estimation of how the Justices were confronting the question of motive. What was his real motive based on the record versus John's notion that he's entitled, according to the statute, to balance the possibility of a lower response rate against the need some states may have for the citizenship data, and why did the Justices seem to be evaluating that with five Republicans versus four Democrats? What's the legal standard and why should that be a partisan issue?

Wolf: [00:21:22] Yeah, there are a lot of threads in there. I'll try to pick through them. I think it might be easier to start with these questions about what is Secretary Ross ultimately there to do? So we have in the Constitution, it's the Constitution's earliest command that Congress is supposed to conduct an actual enumeration. Congress later passes various forms of the Census Act and their statutes, which are used to structure the census process. Over the course of time, what Congress does is it delegates stewardship over that actual enumeration responsibility to the Secretary of Commerce.

 Law, in may respects, I think kind of caught up with practice, so this kind of goes back to what we were talking to at the top of the hour. The development of the Census Bureau over the course of the 20th century, once it was introduced, was oriented very much towards developing a rigorous social scientific approach to the enumeration, to lower costs, and raise accuracy. A lot of the Census Act, now, admittedly, the Census Act is not as detailed as one might think, particularly given how involved the census taking is. But the general concept here of things like reporting what you're going to ask to Congress in a timely manner and requiring administrative records to be used before we ask directly through the census instrument any kind of question are all things that are oriented towards constraining the ability of the census to be politicized.

 So the notion here is that ultimately, what we were supposed to do is to value an actual enumeration and pursue it in a rigorous, fact based, reasoned way to eliminate wobble in the count that can have massive political consequences just based on the political wins of the time. Secretary Ross in this sort of situation is being advised on what to do on the basis of the best social science available to him, and what that social science showed was that asking a citizenship question was going to dilute the count. Secretary Ross is free to disagree with experts, but if he disagrees, he needs to have facts and reasons for doing so. There were not facts and reasons that were well established in front of him at the time he made his decision.

 In his letter, he did not raise the possibility of for instance facilitating redistricting on the basis of non-citizens only. The only rationale he raised was the Voting Rights Act. He claimed that DOJ told him that it would be helpful to collect citizenship information through the census, the decennial census, meaning the short form used to conduct the enumeration every ten years, and that if they can get that info, they can enforce the VRA better. Now, separate apart from the fact that an amicus brief that we filed with the court, we made clear that not only is that kind of information from the census not necessary to enforce the Voting Rights Act, but that actually seeking it out would damage folks' ability to enforce the Voting Rights Act.

 Separate in part from that, what the facts in the case showed was that that request was a pretext, and we also had John Gore, who at the time, was the acting head of the Civil Rights division at DOJ saying that he didn't know one way or another whether this information would actually be necessary to enforce the Voting Rights Act. So Secretary Ross only had one reason, and it was the VRA. That reason was shown through the district court proceedings not just in New York, but California and Maryland to be a pretext. What this created moving forward with the DOJ attempting to defend Secretary Ross's decision and any attempts to create some sort of rationale for the citizenship question as proposed by Secretary Ross is a need to develop other arguments to support it, whether they sound in law or policy, whether they're based in comparative international law. But I believe it was just as Kagan pointed out that none of these things are on the face of Secretary Ross's decision making.

 So I think a lot of the argument that we saw at the Supreme Court was kind of oriented towards trying to figure out or flesh out what these alternative reasons could be, but they're really outside the bounds of what should be properly considered in a strictly construed APA challenge.

Rosen: [00:26:12] John, Tom makes a claim that the liberal Justices did as well in the oral argument that the only reason in the record that the Secretary offered was enforcement of the Voting Rights Act, and Tom argues that that's a pretext unsupported by the record. What is your response, what was the conservative Justice's response, and what is the legal standard that they're using to evaluate whether or not the reason is pretextual? The Becket Fund for Religious Liberty filed a brief expressing concern that free exercise claimants should be able to use the discovery process to examine the real motives behind administrative decisions. They said under the Department of Justice's view of the law, the Administrative Procedure Act would prevent them from getting this critical evidence. So help our listeners understand how the Justices are evaluating this question of motive and how you think it should be evaluated?

Eastman: [00:27:05] Well, and we've got a couple of other things going on here as well. A change in administration from one party to another, a lot of the careerists holding over from the prior administration have a different view than the current administration does. Prior Department of Justice officials from way back into the Bush administration, so not the immediately preceding Obama administration have testified and stated in public commentary and in briefs that in fact, citizenship information would be a very useful in Voting Rights Act disputes.

So then now you've got contested evidence about whether this is useful or not, and if it is useful, does it outweigh the careerists' claims that we're going to undermine or dilute the enumeration, even though that's also contested, as I said, because the Census Bureau has gotten very good at repeat follow ups to make sure they're getting a full enumeration. They do it with homeless people. They do it in all sorts of circumstance, and they've gotten very good at it. So the fact that there's a lower response rate on the initial mailing doesn't mean that we're diluting the enumeration itself. All of these things were before Secretary Ross.

Now, the Supreme Court's also looking at a broader question that they applied to statutory. If the claim purpose for a statute, it turns out to be an unconstitutional one or a pretextual one, in most cases, the Supreme Court applies what we call rational basis review. The vintage version of that is, is there a plausible reason that would uphold this statute whether or not it's the expressed one or not. If there is, the deference to the political branches that the court applies normally would uphold the statute. You get a sense from the oral argument that the court is kind of leaning toward that kind of deferential review under the APA claim as well. Whether they come down that way or not, I don't know, but certainly Solicitor General Noel Francisco in arguing some other things that were not part of Secretary Ross's letter for making this decision is essentially inviting the court to take that step.

Rosen: [00:29:30] Tom, I'm just going to take one more beat on why they seem to dividing on partisan lines. Justice Kavanaugh said, “Assuming there's review and assuming it's arbitrary and capricious, as you know, the judicial review is deferential,” so what are the line of cases that generally would lead the Justices to defer to an administrative heads determination in the face of contested evidence, and is this a question that usually divides along partisan lines?

Wolf: [00:29:59] Well, the interesting thing about that question of agency deference being raised is that this is also an issue that in some form or another is also in front of the court in a case that had heard earlier this year about the Auer doctrine, which is a doctrine relating to an administrative law in deference to agencies. Open questions about what exactly the nature of the question in front of the Justice is is in that case. But it's been generally assumed that many members of the court who are generally classed in the conservative wing think that agencies have gotten too free rein in recent years to create, effectively, law through the promulgation of rules and regulations that lacks democratic oversight.

So the general concept is if you believe that you would like to restrict the ability of agencies to act. That would also require generally not leaving it into the hands, or deferring to the agency over contested issues of law or fact depending on what the particular issue is. So it's somewhat curious to hear this question of, well, shouldn't we ultimately defer to the agency arise, because it suggests to me that this case is not being considered in light of its broader administrative law implications. I think that undoubtedly, the oral argument showed a very hot bench. Both sides were pressed a lot. They weren't necessarily all pressed by the same Justices depending on who was speaking, but everyone was questioned hard.

Many commentators have reached the conclusion that a 5/4 decision upholding Secretary Ross's decision is likely. I'm not one to make predictions, I think, coming from my appellate practice, but what I would say to that is that it may ultimately be very hard for the court to produce a 5/4 opinion in support of Secretary Ross. It partly has to do with just how egregious the facts of this case are. We know that Secretary Ross violated the agency process. He was playing fast and loose with the evidence, science, and basic logic to reach his conclusion. He also created this VRA rationale that you don't actually have to go outside the administrative record to see was just a front for some deeper reason that's never been revealed.

The difficulty is if those facts are laid out, and these are facts that are now in the media. They are out in the public. Everyone knows how this question came about. It's very hard to affirm Secretary Ross's behavior without potentially providing a blank check to agencies going forward, and that's agencies headed by republicans or democratic appointees. That kind of loose rein or free rein for agencies can't possibly be one that this court wants to grant.

Rosen: [00:32:59] John, we did indeed on the We The People podcast have a great discussion of our deference and the Kisor against Wilkie case just a few weeks ago with Johnathan Adler and Ron Levin, and I think Tom accurately states the fact that when it came to the Kisor case, conservative Justices were more skeptical of deference to agencies and more willing to view the matter on first impression. So what's going on here? Why have the tables seemed to turn?

Eastman: [00:33:29] Well, I think it's very important to distinguish between three moving parts on administrative law that are currently in play in the Supreme Court. This is not an Auer deference Kisor type of case. The Secretary has not issued his own regulation and then given an odd interpretation of it that has changed the meaning of the regulation and asking for deference on it. That's the Auer deference. That was an issue in Kisor. Nor has he issued a regulation interpreting a statute that would qualify under Chevron deference, and that's also more mildly in play at the Supreme Court as well.

What we have here is a vintage non-delegation issue. I'm happy. If the court wants to strike down what the Secretary has done here because the statute itself is unconstitutionally delegating lawmaking power from Congress to the executive and revive the non-delegation doctrine as a separation of powers, important doctrine, then I'd be all for that. But look, the Supreme Court last struck down a statute for over-delegating lawmaking power to the executive in 1936, and it has indicated no willingness to revisit the death of the non-delegation doctrine since.

So what we have here is on the current law, did Congress delegate the power to Secretary of Commerce to decide what to ask on the census, and it clearly did in the statute I quoted earlier, Section 141 of Title 13. That's pretty unambiguous a delegation of power, and the Administrative Procedure Act is also pretty unambiguous. We don't even allow judicial review if the action was committed by Congress to agency discretion by law, which is pretty clearly the case here. I think that's one of the reasons why several of the Justices were saying, don't we owe a great deal of deference to the Secretary's determination here? In fact, under the APA, maybe so much deference that we ought not to even be considering this case.

The real issue here, and why I think people, why this has become such a partisan fight, both at the court and in who brought the complaints. It was New York and California. It wasn't Texas, for example, is because the very question of citizenship and whether we're going to distinguish between citizens and non-citizens has become an intensely partisan issue, in part because of President Trump and his highlighting of immigration policy as part of his 2016 campaign. But this issue has been brewing in a partisan divide way for much longer than President Trump was on the scene. I think we see that playing out in the way the case is trying to be structured.

The notion, though, that we can't ask about citizenship for who is going to be, for apportionment on who's going to decide our government really does completely alter the very nature of our republican institutions of government, which are grounded in consent, not on consent of the people the world over, but on consent that are people who are citizens in this body politic. The notion that that's somehow unconstitutional or ought to be problematic under the statute really shows how far the parties are removed from each other on the question of basic citizenship.

Rosen: [00:36:57] Tom, so John as a very strong response, and it was the same one Justice Kavanaugh gave at the court. He said, “The statute that Congress has passed gives huge discretion to the Secretary. How to fill out the form, what to put on the form.” So what is your response to that reading of the statute, and how do we supposed to reconcile that statute against the Administrative Procedure Act, which is, Justice Breyer said, requires the Secretary to rely on data rather than collecting new evidence?

Wolf: [00:37:27] I think we have to return to first principles here. Constitution tells us that Congress is supposed to conduct an actual enumeration. It's supposed to count everyone in the country. There are plenty of good reasons to count every person in the country. If that is the ultimate goal of this census, it needs to be conducted in a manner that permits everyone in the country to be counted. Now, as I referred to a few questions back, what has developed over the course of time is a body of practice around the census that is oriented towards maximizing the accuracy and to count everyone. We've had issues with that in the past. The census has never been perfect. It has long had problems with, what is known as a differential undercount, which means that the census overcounts certain subsets of the population and undercounts other subsets of the population.

Something like the citizenship question just creates a headwind that's gale force where it was already somewhat strong because of its strong tendency to depress response rates. We also have a body of law that has developed over the course of time, mainly in the form of the Census Act, that sort of extends down from the Constitution as Congress intended and interlocks with this body of agency practice to emphasis accurately counting everyone. Which means that Secretary Ross doesn't have a blank check to define what his job is as the head of the Commerce Department in his stewardship of the census. He has been entrusted with a very specific duty. That duty is to ensure an accurate, full enumeration. There is a body of processes that exists to ensure that that count is accurate.

All of those things are an expression of the democratic will. They come from the Constitution, which is our greatest expression of constitutional will in our nation's history. It continues to define it to this day. It's also defined through the Census Act, which is an act of Congress. Secretary Ross enters that room within those boundaries. His ultimate job is to make sure that everyone is counted accurately. His job is to not, in the first instance, to facilitate redistricting. His job is not in the first instance to facilitate data gathering by the DOJ for whatever reason. His main job under the Constitution is to count everyone. Therefore, when he's exercising his discretion, that discretion is analyzed in light of what he's ultimately supposed to be exercising that discretion for.

So what we have in this case is a situation where an agency head has been given very clear guidance and very clear tools to conduct his job, and he threw all of those out the window to pursue a political end. Now, the main thing to keep in mind here is that the whole reason we've invested the census with so much importance over the course of time and the reason why all of this money and resources are poured into the census is this very early idea that we could create a neutral standard for figuring out how political representation is going to be allocated throughout the country.

It was basically created and invested with trust to eliminate political chicanery, as Dan Tokaji at Ohio State University School of Law said very persuasively in a podcast I heard last week. “That notion of insulating against political chicanery tells you everything you need to know about how to rule here. Here, we have someone defying law, defying logic, defying reason, defying practice to pursue an end, we don't ultimately know the reason, but there are strong reasons to suspect they're purely political. That's fundamentally incompatible with this shape of the law and the nature of the job that Secretary Ross is here to do.”

Rosen: [00:41:26] John, Tom says that we should return to first principles and to the Enumeration Clause of the Constitution in Article 1, which says, “Representatives shall be a portion among the several states according to their respective numbers.” You have argued that that allows states to count not all persons, but all citizens. Tell us more about your view on that question and also your response to his claim that the Enumeration Clause requires an accurate census and how that feeds into this case.

Eastman: [00:42:03] Well, and I noticed Tom didn't cite the statute that I cited earlier. The Enumeration Clause in Article 1, Section 2 says there should be an actual enumeration, quote, “In such manner as they, Congress, shall by law direct.” I think it's important to look at the law, which very unambiguously delegates the authority to determine how to conduct a census to the Secretary of Commerce, “In such form and content as he may determine.” That's a direct quote from the statute. So what he's done is add back in a question here about the content, and the content includes citizenship.

Now, I argued in the Evenwel case, and a significant amicus curiae brief we filed that the Enumeration Clause is not asking us to count people who are here temporarily. So the example I like to give is what if the 1984 Olympics in Los Angeles was actually the 1980 Olympics, and it was held during the summer when the census was being undertaken and there were hundreds and hundreds of thousands of people visiting from all over the world who happen to be in Los Angeles for a two or three week period when the census was being conducted. It would be absurd to say that those people ought to be included in the census of the population. They are not part of the numbers of the state that the Census Clause and the Apportionment Clause indicates.

I think further proof of that is the other subclause in that constitutional text “Excluding Indians not taxed.” Now, that's a very odd way of getting there, but what they're talking about is we've got some people amongst our midst who are not part of our body politic, and we're not going to count them in the census. That was the example at the time. They put this specific rather than the general exception in, but I think the specific indicates that the numbers of the states were not intended to include people who were just merely passing through if they just happened to be here on the day the census takers came around.

So asking a citizenship question helps us identify further that issue. Now, it's not the Census Bureau that would not be returning the census forms. If there is any undercount that would result, and again, I'll go back. All we have is bureaucrats in the Census Bureau saying if you ask this question, some people won't respond to our initial survey. That's going to increase the cost. We're going to have to send census workers to knock on the door and take the count because the form wasn't filled out, but the Census Bureau over the decades has gotten very good at approximating 100% comprehensive review on the enumeration even when people are boycotting the census, or even when people are not being reached because they're in rural areas that the mail's not getting to, or whatever. They've gotten very good at that. So I think Secretary Ross looking at all those things is well within his discretion delegated by Congress to say, this is a bit of content we need on the census form.

Rosen: [00:45:07] Well, it is time for closing arguments in this rich and fascinating discussion, and the first one is to you, Tom. Tell our listeners why you believe that Secretary Ross's addition of a citizenship question to the census form violates the law and the constitution.

Wolf: [00:45:26] Secretary Ross's addition of the question most definitely violates both federal statutory law and the Constitution. Under the APA, Secretary Ross was required to make a decision that was clear, transparent, reasonable, and based on fact. His decision was none of those. It flew in the face of not only fact and law, but also logic. The one reason that he gave for adding this question was to help enforce the Voting Rights Act, and that is not only a pretext. That is a false reason, or not the true reason for why he acted, but it is also untrue as a practical matter that adding a citizenship question will help enforce the Voting Rights Act.

There may be any number of different reasons why Secretary Ross really wanted to add the question. My major lurking question there is, if Secretary Ross had other reasons, why didn't he state them? My strong suspicion is, he didn't state them because they'd be unacceptable, even as a matter of law or as matter of basic human decency. As a matter of the Constitution, Secretary Ross as Commerce Secretary in his role as the head of the census process has one job, to obtain a full and accurate census. Adding a citizenship question is inconsistent with a full and accurate census, therefore it violates the law.

All of the facts in front of Secretary Ross would let him know that adding the question would destroy the count. It doesn't matter if the Census Bureau has follow up procedures. They didn't rely on those, but more importantly, those follow up procedures have never been successful in making sure that every group in the country is equally, equitably counted. We've always had undercount problems. Communities that have long been undercounted, including communities that include non-citizens would only be undercounted further as a results of this process.

We live in an environment now that's been shaped by anti-immigrant rhetoric and xenophobia, those kinds of things that lead people to not want to fill out a form when it gets mailed to them sent to them over the internet. It's the same kind of thing that's going to make them not want to answer a door when a representative from the federal government shows up to ask them questions about themselves and their family members. Everything points, and this is both basic logic and fact, to the citizenship question tanking census participation and thereby tanking the count, therefore it can't go forward under the Enumeration Clause.

Rosen: [00:48:09] Thank you so much for that. And John, the last word is to you. Why do you believe that Secretary Ross's addition of a citizenship question to the census form does not violate federal law or the Constitution?

Eastman: [00:48:21] Well, Secretary Ross has proposed to ask about citizenship in a way that the census bureau has done, not every single decade, but most of the decades from 1820 up and through 2000. Up until 1950, it was on the form sent to every house, save, as Tom pointed out earlier, some decades back in the mid-19th century. Since 1960, it's been on the long form sent to a statistically relevant subset of American households. The problem with the subset and the problem with the American Community Survey that still asked about citizenship in a survey that goes to 2% of households is that the citizen estimates that come out of that sampling have been demonstrated to be deeply flawed. As many as 30% of people that claim citizenship on those surveys are not citizens, and it really has a dramatic impact on public policy that deals with immigration, that deals with citizenship questions.

The Constitution affords privileges, immunities to citizens, not all person. These things are constitutionally driven. The enumeration, even arguably, requires that we try and figure out who are citizens, because it's the citizens that direct the control of the government. That's what the Declaration of Independence sets out in founding this government or grounding it on the notion of consent of the governed. So that's why we've asked this question in the past. Congress has delegated the authority to decide the content of the citizenship question to the Secretary of Commerce. He's well within his authority. In fact, under the Administrative Procedure Act, such authority committed to the agency discretion by law, as this clearly is, is not even judicially reviewable.

So the notion that we're going to look behind Secretary Ross's decision, try and determine, did he have some other motive for asking this other than what he point blank said was his goal and his purpose? Those are questions that I think this court is going to be, as prior courts, is going to be very concerned about asking and allowing to be asked. It's why even Justice Ginsburg rejected a notion to force Secretary Ross to be deposed during the litigation. These kind of questions really present a very significant challenge to execution of the law.

So I'm fairly confident after listening to the oral argument and reading the briefs and knowing what the constitutional requirement is as well as the history of the census bureau, that the Supreme Court is going to uphold Secretary Ross's decision, and we'll have a census that will get back in the business of asking not just how many people are here, but are you here permanently or temporarily? We may like to try to figure that out as well, because I think it's critical, and also are you here as a member of our body politic, a citizen, or are you here as a non-citizen, because that's important for our policy judgments as well.

Rosen: [00:51:35] Thank you so much John Eastman and Tom Wolf for a vigorous, engaged, and really illuminating discussion of the important legal and constitutional questions surrounding the addition of a citizenship question to the census. John, Tom, thank you so much for joining.

Eastman: [00:51:50] Thank you, Jeff.

Wolf: [00:51:51] Yeah, and thanks for having me and thanks for talking.

Rosen: [00:51:55] Today's show was engineered by Greg Scheckler and produced by Jackie McDermott. Research was provided by Lana Ulrich and the constitutional content team. Please rate, review, and subscribe to We The People on Apple podcasts and recommend the show to friends, colleagues, or anyone around the world who is hungry for constitutional education and debate, and remember always, dear We The People friends, that the National Constitution Center is a private nonprofit. We rely on the generosity, engagement, and passion of people across the country like you who are inspired by our non-partisan mission of constitutional education and debate. You can support our mission by becoming a member at constitutioncenter.org/membership, or give a donation of any amount to support our work including this podcast at constitutioncenter.org/donate. On behalf of the National Constitution Center, I'm Jeffrey Rosen.

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