Census

SCOTUS Ruling on Adding a Citizenship Question to the Census Shows Wilbur Ross Was Defeated by His Own Lies

The Court concludes that the commerce secretary's "contrived" explanation frustrated "meaningful judicial review."

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Today the Supreme Court agreed with a federal judge that the Commerce Department's official reason for adding a citizenship question to the 2020 census was "pretextual," which frustrated "meaningful judicial review" and violated the Administrative Procedure Act (APA). Although the majority opinion by Chief Justice John Roberts does not explicitly call Commerce Secretary Wilbur Ross a liar, that is the inescapable implication of the procedural history it reviews. The irony is that if Ross had been less dishonest, the Court almost certainly would have approved his decision, since it recognizes that he has broad discretion to determine census questions and that review under the APA is "deferential."

Ross claimed he decided to reinstate the citizenship question, which the Census Bureau has long warned would suppress responses from households that include unauthorized U.S. residents, because the Justice Department requested it, seeking data that would help enforce the Voting Rights Act (VRA). But the record revealed by litigation clearly shows that Ross aggressively solicited the Justice Department's request to justify a decision he had already made.

The pains that Ross took to conceal the real reason for his decision invite the inference that it was unseemly in some way, and evidence suggests that partisan political concerns played a role. If the question led to undercounting of people in households that include illegal immigrants, that would work to the disadvantage of Democrats in redistricting and allocation of federal money, since such households are more common in the districts and states they represent. But the Court does not speculate about Ross' actual motivation, restricting itself to concluding that the rationale he offered was phony.

That aspect of the decision was joined by Justices Ruth Bader Ginsburg, Stephen Breyer, Elena Kagan, and Sonia Sotomayor. Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh dissented on that point, saying it was improper for the Court to question Ross' motives as long as his decision was legal on its face. But any fair-minded person has to agree that Wilbur Ross was, shall we say, less than forthright in explaining the decision.

"Viewing the evidence as a whole, we share the District Court's conviction that the decision to reinstate a citizenship question cannot be adequately explained in terms of DOJ's request for improved citizenship data to better enforce the VRA," Roberts writes. "Several points, considered together, reveal a significant mismatch between the decision the Secretary made and the rationale he provided." Here are those points:

  1. "The record shows that the Secretary began taking steps to reinstate a citizenship question about a week into his tenure, but it contains no hint that he was considering VRA enforcement in connection with that project."
  2. "The Secretary's Director of Policy did not know why the Secretary wished to reinstate the question, but saw it as his task to 'find the best rationale.'"
  3. "The Director initially attempted to elicit requests for citizenship data from the Department of Homeland Security and DOJ's Executive Office for Immigration Review, neither of which is responsible for enforcing the VRA."
  4. "After those attempts failed, he asked Commerce staff to look into whether the Secretary could reinstate the question without receiving a request from another agency."
  5. "The possibility that DOJ's Civil Rights Division might be willing to request citizenship data for VRA enforcement purposes was proposed by Commerce staff along the way and eventually pursued."
  6. "Even so, it was not until the Secretary contacted the Attorney General directly that DOJ's Civil Rights Division expressed interest in acquiring census-based citizenship data to better enforce the VRA. And even then, the record suggests that DOJ's interest was directed more to helping the Commerce Department than to securing the data."
  7. "The December 2017 letter from DOJ drew heavily on contributions from Commerce staff and advisors. Their influence may explain why the letter went beyond a simple entreaty for better citizenship data—what one might expect of a typical request from another agency—to a specific request that Commerce collect the data by means of reinstating a citizenship question on the census."
  8. "Finally, after sending the letter, DOJ declined the Census Bureau's offer to discuss alternative ways to meet DOJ's stated need for improved citizenship data, further suggesting a lack of interest on DOJ's part."

"Altogether," Roberts sums up, "the evidence tells a story that does not match the explanation the Secretary gave for his decision. In the Secretary's telling, Commerce was simply acting on a routine data request from another agency. Yet the materials before us indicate that Commerce went to great lengths to elicit the request from DOJ (or any other willing agency). And unlike a typical case in which an agency may have both stated and unstated reasons for a decision, here the VRA enforcement rationale—the sole stated reason—seems to have been contrived."

Why does it matter? "In order to permit meaningful judicial review, an agency must 'disclose the basis' of its action," Roberts writes. "The reasoned explanation requirement of administrative law…is meant to ensure that agencies offer genuine justifications for important decisions, reasons that can be scrutinized by courts and the interested public. Accepting contrived reasons would defeat the purpose of the enterprise. If judicial review is to be more than an empty ritual, it must demand something better than the explanation offered for the action taken in this case."

The Court therefore agreed with U.S. District Judge Jesse Furman that the Commerce Department needs to try again, this time without lying. Since the department says it has to start printing census forms by the end of this month, that ruling seems to doom Ross' plan to include a citizenship question. But he has no one but himself to blame for that.

"We do not hold that the agency decision here was substantively invalid," the Court notes, disagreeing with Furman's conclusion that Ross' decision violated the Census Act or was "arbitrary and capricious" under the APA. "But agencies must pursue their goals reasonably. Reasoned decisionmaking under the Administrative Procedure Act calls for an explanation for agency action. What was provided here was more of a distraction." That's a diplomatic way of putting it.

NEXT: Trump's Tariff Powers Need Limits. Congressional Democrats Just Introduced a Bill To Set Some.

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  1. Holy shit, that guy looks like he’s auditioning for the role of Death.

    1. Dude is pissed the hobbits took his precious

    2. His next career will be in horror movies.

    3. yeah he got the role.

    4. Ross should be charged with perjury, but the ruling was wrong. As was the gerrymandering ruling.

      SCOTUS 0 for 2 today.

      1. Gerrymandering was correct. Constitution states it is the legislature that decides the means and manner, not the courts. Congress is free to apply uniform rules but they have not.

  2. Roberts is utter trash.
    Penaltax part deux – this time we won’t let the US ask how many citizens it has!

    1. The penaltax was bullshit, but Roberts got it right this time. Ross was engaging in nakedly partisan activities, which is bad enough, but he was also telling rather transparent lies about it. No one less gullible than a severely concussed kitten ever believed the nonsense about voting rights.

  3. It looks more like it was defeated by John Roberts’ fear of the political consequences, and his desire to have cover for deciding it is legal.

    1. Is there anything Bush did not utterly fuck up?

    2. this.

  4. Because knowledge is not applicable to any discussion about immigration. It is all emotion. Why would anyone ever want to know anything about how many undocumented people are living here?

    1. The purpose of the census is not to provide facts for the discussion of immigration. Just sayin’.
      The people who wrote the Constitution decided the census would count all people, not just citizens, for the purpose of apportionment. So that’s the fundamental purpose of the whole thing.
      Of course, it’s legal to ask and I’m kind of surprised they don’t. Seems like the sort of thing you want to know. Certainly more appropriate than all the other demographic questions they ask.
      But if it were up to me, I’d just ask how many people live here and leave it at that.

      1. The applicable question is the constitutionality of the citizenship question for the count. The Constitution clearly asks for a count of all people. The citizenship question is certainly applicable in the long form that characterizes the population. But not on the count. Wilbur Ross’s underhanded method to include it in the short form was caught and he correctly lost the case.

        1. “In light of the early understanding of and long practice under the enumeration clause, we conclude that it permits Congress, and by extension the secretary, to inquire about citizenship on the census questionnaire,” Roberts wrote.

        2. Even the short form asks irrelevant questions about demographics. It has asked about citizenship in the past.
          I don’t have particularly strong opinion on the citizenship questions one way or the other. But I don’t see how it would be unconstitutional if all the other stuff they ask beyond “how many people live here” is.

        3. The applicable question is the constitutionality of the citizenship question for the count.

          No, it isn’t. The applicable question is whether the procedure for adding a question was properly followed.

          1. Per Roberts there is no procedure because they can ask whatever they want. It seems more like Robert’s ruled on him not being open enough about his reasons which is a silly objection.

        4. Why does the method matter?

  5. In a dissenting opinion, Thomas wrote that, “For the first time ever, the court invalidates an agency action solely because it questions the sincerity of the agency’s otherwise adequate rationale.”

    “This conclusion is extraordinary,” he wrote. “The court engages in an unauthorized inquiry into evidence not properly before us to reach an unsupported conclusion.”

    1. I’m not going to be too upset if this is a signal that the court is going to begin to seriously question the actual motivations of regulatory agencies. Still, that seems unlikely. It will be interesting to see this precedent applied to other cases, especially when regulators know that their actual motivations will need to be hidden for fear of this type of scrutiny.

      1. It only signals for evidence when it is trump passing or utilizing the power. Just weeks ago the court said they could not judge the animus behind requests for trump’s tax returns because they had to believe congress was not acting maliciously.

      2. Pretty sure Chevron isn’t getting overturned anytime soon.

        What a horrendous ruling. If the Census is to do anything, it’s to count citizens in order to apportion representation. The language for people vs citizen is a holdover from having to get slave states to sign onto the Constitution. Yet another reason the South should have picked its own cotton.

        So what dirt does the Left have on Roberts anyway? Gay? Kiddie-diddling? Monkeying with his kid’s adoption?

        Guy is angling for C.J. Warren status as “most hated Justice appointed by a Republican.”

        1. If the Census is to do anything, it’s to count citizens in order to apportion representation.

          Representatives “represent” (lol) all persons, including non-citizens.

          1. All the world gets to pick US laws

          2. Because of slavery. Slaves were chattel property that nevertheless were used to determine representation. They had a right to be in the country, as they were property of citizens, and any right to apportion the sovereignty of the US was derivative of those citizens’ rights to do so. .

            Non-tax paying Indians were present in the states at the same time as slaves, yet were properly not counted for apportionment, as they had their own sovereignty.

            Illegal aliens, on the other hand, don’t have a right to be here—indeed it is illegal for them to be here at all—and as citizens of another country, are subjects of that sovereign. While the US may enforce jurisdiction upon illegal aliens in its country, illegal aliens should not have anything to do with apportioning the sovereignty of the US. It is insane for a given governmental entity like California to choose to not enforce federal law, solicit illegal aliens to arrive in their state, and benefit from doing so.

            Especially as the citizenship question was on the Census for every version except 2010’s!

            1. apportion the sovereignty of the US

              What is this phrase even supposed to mean?

              Redistricting does not “apportion sovereignty”, it actually apportions voters.

  6. So will we be removing the questions about age, sex, marital status, own or rent your home, and whether you are hispanic from the census forms? They could all be used to discriminate against someone?

    1. Yeah because discrimination is what this article and supreme court decision is about. I mean seriously, do ctrl+f and search discrimination; oh look, the first use of the word is in your comment. Feel free to legitimately disagree about stuff (I’m with Thomas on this one), but geez read something somewhere, please.

      1. And yet in all the briefs the ACLU and others presented, the focus was discriminatory animus. So bury your head in the sand if you want.

        1. “So bury your head in the sand if you want.”

          Yep, this is one of the ways the SCOTUS dumps a case when they have to answer it, but don’t feel like committing themselves on the merits. I guess ‘lack of standing’ and ‘ripeness’ were tried and failed before the logic Roberts ended up using.

          ‘Oh, you can just resubmit the question for consideration after giving more reasoning for including the question. What’s that? The Census forms have to be sent off before you can go through this resubmission process? Well, I guess you’re going to have to wait until 2030 then…’

          Dishonest as hell.

  7. “The irony is that if Ross had been less dishonest, the Court almost certainly would have approved his decision, since it recognizes that he has broad discretion to determine census questions and that review under the APA is “deferential.”

    1) Why does the Secretary of Commerce have so much discretion?

    2) Why should the Secretary of Commerce have so much discretion?

    Dig deep enough, and I bet that the answer to the first question is, “because our representatives in Congress would rather abdicate their power than go on the record voting for controversial rules”.

    The answer to the second question is also, probably, “for no good reason”.

    1. For something that only happens every 10 years, and is mandated by the Constitution, you’d think congress could get off its ass and actually decide how the census should work.

  8. I don’t normally like to judge a book but its human skin cover, but…

    1. I don’t normally like to judge a book lich by its human skin cover, but…

      FTFY

  9. cancel the census until further notice.

    1. Not a bad idea.

      1. Apart from being unconstitutional?

        1. do it until they tell you you can’t. America.

    2. “And I would have gotten away with it too, if it hadn’t been for those meddling judges!”

    3. Technically, the Census is a Constitutional requirement for apportionment.

      However, the Constitution says that the Census method is largely determined by law.

      1. fine take the census just don’t apply the results to anything … suspension of whyever dafuq everybody wants it taken.

    4. Can’t it is required by the Constitution.

  10. >>>”We do not hold that the agency decision here was substantively invalid,” the Court notes

    “… we just know better than you fytw.”

  11. Poor reason is so upset that they are lying. The court remanded the case back to the Dept of Commerce and District Court and said in part:
    The Enumeration Clause permits Congress, and by extension the Secretary, to inquire about citizenship on the census question-naire. That conclusion follows from Congress’s broad authority over the census, as informed by long and consistent historical practice that “has been open, widespread, and unchallenged since the early days of the Republic.” (Page 3)

    The SCOTUS majority considers the question of citizenship on the Census perfectly fine but this case is remanded back to the Dept. of Commerce which likely means that the question will not make it on the 2020 Census as it starts being printed July 1.

    Hopefully Trump pushes to have followup Census questions include citizenship.

    I would rather have all illegals deported, a simple count of every American inside the USA, and all Census’ focus on getting that count correct. With correct counts of visiting non-Americans on visas, Americans could have a more accurate tally of how many illegals and visitors overstaying visas that are inside the USA.

    1. I would rather have all illegals deported, a simple count of every American inside the USA, and all Census’ focus on getting that count correct

      Then you’ll have to change the constitution or deport all the legal resident non-citizens too.

      1. Actually no. The SCOTUS is okay with the citizenship question being asked.

        Ask if you’re an American and those are the people we use toward apportionment. Legal residents are NOT “illegal” can be counted toward apportionment. Indians not taxed were excluded from apportionment, so not everyone inside US borders were used toward apportionment.

        US Constitution, Article I, Section 2:
        […]Representatives and direct taxes shall be apportioned among the several states which may be included within this union, according to their respective numbers, which shall be determined by adding to 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.[…]

  12. Today, SCOTUS was diagnosed with TDS. Because that’s the only reason you can believe there’s some nefarious purpose behind Ross’s request other than to count the number of illegals to reassign stolen representation from CA/NY/TX/FL to solid R states.

    1. That’s not how it works. The census is to count all people. That includes non-citizens, even illegal aliens.
      And if you think that illegals will all identify themselves on the census so they can be deported, I’ve got a bridge for sale you might be interested in.

      1. That’s exactly how this will work. The 3/5ths Compromise was created to lessen the ability of Southern slaveholders to permanently enshrine slavery via “democracy” by counting their slaves towards their representation. The only reason they compromised was to kick the Civil War can down the road because everyone agreed we should solidify America first and then kill each other to determine its future. Illegals currently give States additional representation, which is why sanctuary policies are pursued in the first place.

        Illegals won’t identify themselves and that’s the point. The real population will be “understated” and we will know how many electoral votes and representatives to reassign to other states. Then we can start investigating and potentially prosecuting sanctuary municipalities for treason.

        You better hope this happens or else that’s the next Civil War everyone keeps talking about. Stop trying to defend demographic and cultural replacement for the purposes of establishing a one party society and eliminating wrongthink.

        1. In short, we’ll deport the illegals in due time. For now, the #1 concern of everyone that isn’t a raving leftist is to stop said leftists from importing enough people to make us democratically irrelevant. Now you know why they don’t make a serious legislative push for amnesty. Amnesty would hurt them by allowing these populations to vote for themselves. These traitors want illegal immigrants subjugated and subservient just like slaves. That’s all they really are for the leftist elite.

        2. Where did I defend anything or take a position on demographic change in the country one way or the other? Stop assuming you know what other people believe. I never told you what I think about immigration. And I’m not actually opposed to a citizenship question on the census.

          1. Pot calling the kettle black there. I literally said why I want a citizenship question and you assumed I meant in order to deport people.

            I don’t understand what you’re trying to say here. All I said originally is that I don’t like the idea that SCOTUS decided to deny something they otherwise agree is Constitutional, especially not for the nebulous reasons that the other 4 justices aptly decried. Now all I have to do is run a disinformation campaign to sway the judges and I can stop anything I want! It was just as bad, if not worse, than Sotomayor’s anti “Muslim Ban” opinion.

            1. My initial point was that a citizenship question would not allow return of “stolen representation” from states with lots of illegals because they still count toward the total population. The only way that would happen would be if you deport the illegals or move them to other states.
              So I’m not saying that you said that the question was for the purpose of deporting people, but rather that deporting people is the only way to get the benefit you claimed would come from the citizenship question on the census.

        3. So you are in favor of a deliberately fraudulent, unconstitutional, Census count, as long as it serves your political aims.

          Does that about summarize it?

      2. “The census is to count all people”

        This is not strictly accurate, but I won’t split hairs.

        1. Well, that’s mighty kind of you, Mr. Satan.

          FWIW, I did consider adding something about “other persons” and Indians not taxed.

        2. Look up something like “subject to the jurisdiction thereof” and do some reading.
          Birthright citizenship is bullshit and always has been. The crafters of the 14th amendment explicitly stated what that statement meant. Citizenship would be conferred on newborns via parental status.
          Anyway, I’m not going to look up how that relates to census tracking and representation, but I’d think it would be relevant.

          http://www.federalistblog.us/2007/09/revisiting_subject_to_the_jurisdiction

          Slavery was a unique and particular situation, the remedies for which have been exploited for the entirety of the progressive era

      3. The question doesnt ask if you are illegally here. Nobody is going to use this as a charging document on status. Stop being ignorant and parroting the left’s inane calamity theories.

        1. Nobody is going to use this as a charging document on status.

          You’re so right. It’s not like Census data has ever been used for ulterior purposes before.

          https://www.scientificamerican.com/article/confirmed-the-us-census-b/

          1. Jeff.. oh sweet idiotic jeff… non citizens are not necessarily here illegally you racist fuck.

        2. Maybe if you would read an article outside of your right-wing bubble, you might learn something about how the world really works.

          1. God you’re a fucking moron Jeff.

            Do you not understand the difference between “are you a citizen?” And “are you here illegally?” This may shock your ignorant dumbfuck mind, but not all non citizens are here illegally. Saying you’re not a citizen doesnt mean you committed a crime. Do you know what a charging document is?

            Way to point to an abuse by a democrat that directly relates to using direct race based questions to round up race based police actions.

            You really do have the intelligence of a child.

            1. Yea, but not a very bright one

            2. Way to totally miss the point.

              Census data HAS BEEN MISUSED for purposes other than it was intended for. I do not trust anyone in the government, LEAST of all Trump, to not use Census data to try to round up undocumented immigrants. And I’m fairly certain that if Trump were to do that, you would be his biggest cheerleader.

              1. That would be AWESOME.

                But it’s not even needed anyway. With all the processing power we have nowadays, we could figure out such a high percentage of them just by running through data they already have, toss them out, and then the rest would be scared shitless and leave.

    2. Democrat leadership knows exactly how bad this gerrymandering case is going to fuck them.

      Red states that will pick up House seats from Blue states can now gerrymander based on partisan lines and will completely minimize Lefties who have moved to Red states. Blue states will have no say in how Red states determine Congressional districts.

      This Census question was accepted by the SCOTUS majority but they deferred handing a defeat to Lefties until after the Census printing takes place on July 1.

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  14. Whew, now the sock puppets for Big Business and rich libterds can keep their gardeners and nannies.

  15. Aww, more “’cause Trump” verdicts. Always a good idea. Really.

    I don’t remember many of Obama’s environmental policies being held up similarly, in spite of his plans to bankrupt coal companies et al…

  16. In Defeat, Pelosi Agrees to Pass Senate Border Bill Without House Conditions

    Speaker Nancy Pelosi capitulated on Thursday to Republicans and moderates in her own party by agreeing to a Senate humanitarian aid package that jettisons the House’s strict protections for migrant children in overcrowded shelters on the border with Mexico.

    hahaha. Never tired of winning!

    #MAGA

  17. I’ve only read certain excerpts… but what a twist of logic from Roberts. He basically says the executive can basically ask whatever they want for any reason they want… but you have to correctly explain.

    Wasnt it just a few weeks ago courts were saying they couldn’t judge the reasons for Congress to request trump’s tax returns?

    1. Dumb effer Roberts must have missed a cocktail party, and he’s all butthurt about it.

  18. Actually , the census forms don’t have to be printed until the end of October . It is possible to resolve this issue in time to include the question about citizenship. My guess is they already have the forms printed and just want it finalized in order to send them out.

    1. I would say that Trump has until the end of 2020 to complete a Census. There is not Constitutional requirement on when to start the Census.

      Trump can also have followup questions about citizenship even if the forms dont have it on there.

      This case was a huge win for America and Trump and the media knows it. The media is trying to flip how big of a win this is.

  19. Such bullshit.

    The way the commies have been able to hold up Trump from doing stuff that is legally in his power is mind boggling. God forbid, if we end up with a commie in office again, they need to do this shit x10 to that bastard.

  20. The Court concludes that the commerce secretary’s “contrived” explanation frustrated “meaningful judicial review.”

    The motivation or explanation for adding the citizenship question should be completely irrelevant. What matters is whether the president has the authority and whether there is a rational basis for adding it.

  21. […] week the Supreme Court ruled that Ross’s “contrived” rationale for reinstating the citizenship question—that […]

  22. […] week the Supreme Court ruled that Ross’s “contrived” rationale for reinstating the citizenship question—that the Justice […]

  23. […] “SCOTUS Ruling on Adding a Citizenship Question to the Census Shows Wilbur Ross Was Defeated by His O…,” by Jacob Sullum […]

  24. […] “SCOTUS Ruling on Adding a Citizenship Question to the Census Shows Wilbur Ross Was Defeated by His O…,” by Jacob Sullum […]

  25. […] “SCOTUS Ruling on Adding a Citizenship Question to the Census Shows Wilbur Ross Was Defeated by His O…,” by Jacob Sullum […]

  26. […] about the question’s political impact. The only reason that litigation produced a June 27 Supreme Court decision blocking the question was the blatant, bumbling mendacity of Commerce Secretary Wilbur Ross, whose […]

  27. […] about the question’s political impact. The only reason that litigation produced a June 27 Supreme Court decision blocking the question was the blatant, bumbling mendacity of Commerce Secretary Wilbur Ross, whose […]

  28. […] about the question’s political impact. The only reason that litigation produced a June 27 Supreme Court decision blocking the question was the blatant, bumbling mendacity of Commerce Secretary Wilbur Ross, whose […]

  29. […] anxious about the question’s political impact. The only reason that litigation produced a June 27 Supreme Court decision blocking the question was the blatant, bumbling mendacity of Commerce Secretary Wilbur Ross, whose […]

  30. […] about the question’s political impact. The only reason that litigation produced a June 27 Supreme Court decision blocking the question was the blatant, bumbling mendacity of Commerce Secretary Wilbur Ross, whose […]

  31. […] about the question’s political impact. The only reason that litigation produced a June 27 Supreme Court decision blocking the question was the blatant, bumbling mendacity of Commerce Secretary Wilbur Ross, whose […]

  32. […] fight that even many conservatives have suggested was an error from the outset. The Supreme Court ruled last month that the justification for adding the citizenship question to the census—Trump administration […]

  33. […] fight that even many conservatives have suggested was an error from the outset. The Supreme Court ruled last month that the justification for adding the citizenship question to the census—Trump administration […]

  34. […] fight that even many conservatives have suggested was an error from the outset. The Supreme Court ruled last month that the justification for adding the citizenship question to the census—Trump administration […]

  35. […] fight that even many conservatives have suggested was an error from the outset. The Supreme Court ruled last month that the justification for adding the citizenship question to the census—Trump administration […]

  36. […] fight that even many conservatives have suggested was an error from the outset. The Supreme Court ruled last month that the justification for adding the citizenship question to the census—Trump administration […]

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