Buzbee in NYT: Census Case Tests SCOTUS Majority's Commitment to Political Neutrality

Matthew Freeman

April 23, 2019

CPR Member Scholar Bill Buzbee has an op-ed in The New York Times this morning in which he observes that the Supreme Court’s conservative majority faces a true rubber-meets-the-road test as it considers the Trump administration’s determination to add a citizenship question to the 2020 census, despite multiple procedural and substantive problems with the plan.

The administration’s thinly veiled objective with the additional question is to discourage participation in the census by non-citizens, who might understandably fear that revealing their status on an official government questionnaire could result in deportation. Since the Constitution makes clear that the purpose of the census is to count the total population, not just citizens, such questions haven’t been included since 1960.

But Commerce Secretary Wilbur Ross apparently regards that problem as a feature, not a bug, no doubt with the approval of the president. So, in March 2018, he announced that a citizenship question would be included in the short-form census questionnaire that goes to most households. As Buzbee points out:

Secretary Ross’s action violated three mandates from Congress. First, the government must use alternative data sources before adding questions to a census questionnaire to acquire the information. Second, Congress required Mr. Ross to review any changes with Congress three years before the census. He failed to meet that deadline. Third, agency officials cannot act arbitrarily and without a factual basis, as Mr. Ross did.

Various members of the conservative majority on the Supreme Court have frequently argued for limits on the discretion of administrative agencies like the Census Bureau as they apply the law. In this instance, as Buzbee makes clear, not only was the process by which the question was added in violation of congressional mandates, so was the substance of the question itself.

Buzbee observes that in various opinions, articles, and speeches, the Court’s conservatives called for “close judicial review of federal agencies during the Obama years as they advanced efforts to address pressing social ills.” He continues:

Will these conservative justices apply the same scrutiny in the highly politicized census case, when a green light from the court for President Trump would result in a win for the Republican Party and anti-immigrant sentiment? …

If the court’s conservatives dodge the troubling facts and violations of law in this case, then their political stripes will be revealed. But if they call it straight and reject this politicized, illegal and unjustified action, they will do much to enhance the court’s reputation during these times of partisan division.

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