The Supreme Court just wrapped up its 2018 term and, as always, saved the most controversial decisions for last. Department of Commerce v. New York, which concerns the addition of a citizenship question on the upcoming 2020 census, has been dominating the public sphere since the decision came out. While the Court delivered a 5-4 divided decision, the justices found common ground on only one matter, agreeing with the state of New York that the addition of the citizenship question would lead to lower response rates and thus an undercount of those residing in these areas.
This is significant because the data gathered from the census is used in many federal programs and is especially impactful in elections as districts are drawn by the population of the area regardless of legal status. As this term ended, the Court announced the cases they will hear next term, particularly one referred to as the DACA case, which is expected to issue a final decision on the Deferred Action for Childhood Arrivals program. While the cases differ in exact legal argument, they are similar in regard to their action toward immigration and administrative procedure.
The decision in the citizenship question case is one that stands as a benchmark for how the Court will interact with the Trump administration going forward, especially when it comes to the decision process within the administration. The Court appeared divided throughout the decision, with a concrete liberal and conservative bloc forming with Chief Justice John Roberts issuing the final vote and writing the majority opinion for the Court. In the decision, the Court held that there was no violation of the Administrative Procedure Act (APA), Census Act, or the Enumeration Clause, which cleared the Department of Commerce of any abuse of power and cleared the addition of the question from being unlawful in any way, which was a decision in line with the conservative bloc.
While the Court supported the question itself, in the final part of the majority decision Roberts blocked the addition of the question due to the conflicting rationale and evidence found from the Department of Commerce – holding that there was no issue with the question being added to the census, but instead the actions of the department did not have proper reasoning. The Court thus concluded that if Commerce wanted to add the citizenship question, they would have to re-argue with a new rationale for the addition in a lower court.
It is this issue concerning the rationale that has become the centerpiece of the Court’s decision, dividing the remaining opinions of the justices to call for either far more action or less leniency to the actions of Commerce. Justice Stephen Breyer wrote the opinion concurring only in this final part, joined by Justices Elena Kagan, Sonia Sotomayor, and Ruth Bader Ginsburg. Breyer agreed that the evidence does not match the Secretary Wilbur Ross’ provided rationale and it also is enough to violate the standards of effective procedure put forth by the APA, as well as the Census Act and Enumeration Clause. This opinion finds that the addition of the question as a whole is unconstitutional as well as discusses the actions of the secretary.
On the other side of the court, Justice Clarence Thomas wrote an opinion, mainly dissenting in the final part, addressing the conflict between the evidence and rationale with Justices Neil Gorsuch and Brett Kavanaugh joining. Thomas found that the action taken by the lower district court to acquire the evidence was unlawful and that the court should not be ruling to block the addition of the question solely over unknown rationale. Justice Samuel Alito separated himself from the other justices, writing a solo opinion, which also focused on the rationale question. Alito’s opinion was more scathing and took a different route, stating, “To put bluntly, the Federal Judiciary has no authority to stick its nose into the question whether it is good policy to include a citizenship question on the census or whether the reasons given by Secretary Ross for that decision were his only reasons or only real reasons.”
Even after the decision was announced, due to the divide of the Court and the narrowness of the decision as well as the determination of President Trump, it was up in the air whether the question would ultimately be included in the census. A few days after the decision was released, the Department of Justice released a letter stating that the census had begun the printing process without the citizenship question – aligning with the deadline of June 30 that the Department of Commerce provided to the court to allow printing to be done on time. The following day, Trump tweeted that the administration would not give up the battle, effectively proclaiming the released letter as false. However, after an attempt to replace the DOJ attorneys on the case was blocked by the lower court and despite the president’s assertion that he may use an executive order to add the question to the census, the president announced that he was dropping his quest to implement the question on the 2020 census and would instead seek the data from other agencies. Similarly, a federal judge in New York issued an order that has blocked the administration from adding the question onto the census in any form.
The case displays a lot of telling information on how the Court will interact with the administration’s methodology and of how the executive branch will respect and possibly enforce the decisions made by their judicial counterpart. These are important considerations when looking at the docket for the next term, especially when looking at the DACA case. This case focuses less on whether or not actions violated a specific act or law, but rather on whether the actions taken to implement this new policy were correct. The case will mostly revolve around President Trump directing DHS to stop the DACA program in mid-2017 and whether the actions taken were acceptable to lawfully end the program. Perhaps more of a focus for the justices will be whether or not the court should review the action at all. Justice Alito has made his thoughts on the matter pretty clear through his decision in the citizenship question case. The DACA case is directly a policy matter, which is sure to get his attention and will certainly lead to interesting oral arguments and writing from the Court.