That's the Auer deference. Now, both of those things are pretty clearly committing to agency discretion the determination of what to include on the census. 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? “By including a citizenship question which will diminish response rates, the census will not be able to fulfill its constitutional duty to count everyone.”.
The late Justice Byron White famously said that with each new justice, there is a new Supreme Court. You can only get that by including the citizenship question on the census form.
This seems to be a rather important fact for us to have as we embark upon visiting revisions to our immigration policy. 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. Why have the tables seemed to turn? 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." If there is any undercount that would result, and again, I'll go back. Tom, it is wonderful to welcome you to the show. (Read the full list of plaintiffs here. 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. Joining us to explore the fascinating constitutional and statutory questions on both sides of this important case, we have John Eastman.
That sounds ridiculous, because it is. 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. One key point from the ruling, though, is that the citizenship question isn’t inherently unconstitutional. 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. Gray explain the necessity of this: “Section 2 of the 14th Amendment provides that if a state denies the franchise to anyone eligible to vote, its allotment of House seats shall be ‘reduced in the proportion which the number of such ... citizens shall bear to the whole number of ... citizens … in such state.’ This language is absolute and mandatory. His job is not in the first instance to facilitate data gathering by the DOJ for whatever reason. The Interactive Constitution is available as a free app on your mobile device. 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.
Non-citizens comprise an estimated seven percent of people living in the United States. 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.
So asking a citizenship question helps us identify further that issue. That would be opening up a hornet's nest that the Supreme Court has repeatedly shied away from. —, 2020 census; Census Bureau; citizenship question, Jacobin contributor: Calls for NBC not to air Trump townhall won't succeed in 'deplatforming' the president, How social media is tracking the coronavirus epidemic in real time, Conservative group head: Trump loss would not vindicate 'the old GOP formula', Inspired by #MeToo, some men are trying to redefine masculinity. Tom, you'd just written a critical history of the citizenship question. Tom Wolf is counsel with the Democracy Program at the Brennan Center, where his work focuses on redistricting and the census. 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. 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.
© 2020 ABC News Internet Ventures. That's pretty unambiguous a delegation of power, and the Administrative Procedure Act is also pretty unambiguous. How to fill out the form, what to put on the form." So help our listeners understand how the Justices are evaluating this question of motive and how you think it should be evaluated? First, it requires the use of administrative records rather than adding a new and direct question. He claimed that the question was unconstitutional because everyone in the country had to be counted, and you couldn't distinguish between citizens and non-citizens. So what we have is the removal of the citizenship question entirely from the census forms for the first time in 2010. It continues to define it to this day. It's also defined through the Census Act, which is an act of Congress. Their count is external to Section 2. 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. 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. 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. Does it matter how and why the question is added? That’s not the function of the federal census. 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. 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. The census questionnaire shouldn’t ask whether respondents are of Hispanic origin. “The U.S. Constitution mandates a count of every person living in the United States,” said Nina Perales, MALDEF vice president of litigation. Tom Wolf is Counsel with the Democracy Program at the Brennan Center, where his work focuses on redistricting and the census. 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." 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. The contents of this site are ©2020 Capitol Hill Publishing Corp., a subsidiary of News Communications, Inc.
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. The question also violates the Administrative Procedure Act requirement to comply with the Census Bureau’s rules for testing new questions.
WITHIN HOURS of the Commerce Department’s announcement last Monday that there will be a, The census has been posing questions about citizenship, off and on, for 200 years. Sorry, your blog cannot share posts by email. This episode was engineered by Greg Scheckler and produced by Jackie McDermott. The census has been posing questions about citizenship, off and on, for 200 years. Rosen: [00:36:57] Tom, so John as a very strong response, and it was the same one Justice Kavanaugh gave at the court.
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