Robert Barnes reports at WaPo.
The census hasn’t asked the question of each household since 1950, and a federal judge last month stopped the Commerce Department from adding it to the upcoming count. He questioned the motives of Commerce Secretary Wilbur Ross, and said the secretary broke a “veritable smorgasbord” of federal rules by overriding the advice of career officials.
Those opposed to the question argue the census response rate will likely fall if households are asked whether undocumented immigrants are present, and make less accurate the once-a-decade “actual Enumeration” of the population required by the Constitution....
The case is
Department of Commerce v. New York. New York said in its brief:
The enumeration affects the apportionment of representatives to Congress among the states, the allocation of electors to the electoral college, the division of congressional districts within each state, the apportionment of state and local legislative seats, and the distribution of hundreds of billions of dollars of federal funding....
For at least the last forty years, the [Census] bureau has vigorously opposed adding any such question based on its concern that doing so ‘will inevitably jeopardize the overall accuracy of the population count’ by depressing response rates from certain populations, including noncitizens and immigrants....
Posts
72 comments:
The enumeration affects the apportionment of representatives to Congress among the states, the allocation of electors to the electoral college, the division of congressional districts within each state, the apportionment of state and local legislative seats, and the distribution of hundreds of billions of dollars of federal funding....
Maybe I'm being naive, but ideally shouldn't the apportionment of representatives be based upon actual citizens?
Nonapod, +1
Were any of the justices who voted on this cert decision in a coma?
If so, then how did that justice vote?
I want to see a citizenship census of all prison inmates.
I predict Roberts will declare it a tax, and rule with the Liberal wing of the court. That doesn’t exist.
That's the original Constitutional issue that they compromised at the 1787 Convention. Northern states insisted on a 3/5ths only count of non-citizen southern owned slaves to suppress Southern States' electoral votes and Representatives.
Maybe California will accept a 3/5ths compromise of Mexicans.
What Nonapod wrote.
One of the very important aspects of the census is to apportion the House and figure out the number Electoral College votes each state has. If all the illegals get counted, then California has an unfair advantage.
It is rank speculation that illegals will be afraid to answer the census if the question is on it. They've been safe so far.
Wilbur was right to reject the "experts" in the Deep State as to what should be on the census. Again, pure speculation. The experts also speculate we only have 12 years left.
And decent non-political "balls and strikes" judge would find for the Secretary of Commerce.
The law -- which is an ass in this case -- says that apportionment is based on population, and it includes non-citizens and even illegal aliens. So they do count.
That's the law. But as far as I can tell, it is also the law that the appropriate federal agencies can determine whether to include a citizenship question, just like we ask questions about race and ethnicity on the census.
I really hope the Trump Administration wins this, and my gut prediction is that they will, 5-4.
You've got to be kidding me.
I can imagine the following conversation
"Your honor we believe asking for details leads to too many inaccuracies and that inaccuracies regarding citizen numbers won't provide the detail we need for the census. There's a hierarchy of inaccuracies you see? We don't want additional details because that could cause inaccuracies that fail to produce the detailed numbers we need. We hope to show the court that additional detail would cause inaccuracies."
This is equivalent to a store giving someone something for free because asking them for their non-existent credit card number would've kept them from coming through the door.
Nonapod said...
Maybe I'm being naive, but ideally shouldn't the apportionment of representatives be based upon actual citizens?
What should be is certainly debatable. But the Constitution talks about people, not citizens, so the number of people is what is used. If you don't agree, change the Constitution
Will the 2020 census be remotely accurate? Why would we expect that?
If illegal immigrants are unwilling to participate in the census, surely it is yet more evidence that they have not submitted themselves to the jurisdiction of the United States?
So these states and counties get more money and power from the non-citizens. Nice. Talk about disenfranchisement.... they don’t even need to vote.
Maybe I'm being naive, but ideally shouldn't the apportionment of representatives be based upon actual citizens?
How about citizens and legal residents?
Though there's a good logical argument to be made for representation to be based only on citizens, that's not the way the Constitution is written. It's on residents, whether or not citizens. Though not necessary to allocate Congressional representation, there are lot of good reasons to know the number of citizens versus non-citizens in each state and in the country as a whole. Asking that in the census was the norm for many years. Make the Census Great Again!
If you don't agree, change the Constitution
I don't agree.
And obviously the Constitution will never be changed to align with my viewpoint since the current state of affairs greatly benefits states with inceasingly larger and larger populations of non-citizens. It benefits the powerful to become even more powerful.
He questioned the motives of Commerce Secretary Wilbur Ross, and said the secretary broke a “veritable smorgasbord” of federal rules by overriding the advice of career officials
Why should judges get to consider the motives of federal officers or the breaking of federal rules (not laws), which I assume were made by the Executive?
Great point gahre. And that means that babies born to illegal aliens don't have birthright citizenship.
Note well that it took a statute to grant Indians born in this country US citizenship.
Wilbur Ross, and said the secretary broke a “veritable smorgasbord” of federal rules by overriding the advice of career officials.
There’s a federal rule or rules that they can’t override career employees decisions?
No wonder why DC is a mess.
Hasn't the question been on previous census questionnaires? If that is true, why wouldn't the issue be moot?
Gonna be another win for Trump. Video in late June.
We can still exclude Indians not taxed from the count though, which is nice.
If the question is excluded from the Census the incentive for States with low non-citizen populations to start importing them will grow, while they push the Feds harder to collect and expel illegals in other States.
Such an easy case.
As a policy matter, it may or may not be a good idea to ask whether one is legal citizen on the census form.
As a political matter, of course Dems oppose this. They want many illegal immigrants to live here.
As a legal matter, though, there's no barrier to asking the question.
But, there's lotta knuckle-head judges on the bench......
....the secretary broke a “veritable smorgasbord” of federal rules...
I think we need to stop pretending that the Scandinavian countries and their so-called democratic socialism are some sort of utopia.
That SCOTUS took the case now is not much of a surprise. Respondents' opposition brief argued against a grant of cert, but quickly added that if the Court were inclined to grant cert, it should do so now as the Gov't requested and for the reason the Gov't said. It was really a foregone conclusion that cert would be granted because SCOTUS had already granted cert on one of the two questions that the Gov't is asking the Court to review (i.e., whether the D Ct erred in allowing Respondents to take discovery rather than deciding the case on the admin record). The second question is a basic admin law issue plus standing stuff. Many ways in which the Court can resolve this for the Gov't without saying anything about the hot-button political stuff just below the surface.
From reading the briefs, I suspect the Gov't will prevail and by better than the 5-4 margin that some are expecting.
This is the closest we'll come to finding out if our own government thinks citizenship means anything at all.
There can be no splitting the baby on this one.
Given the Census has asked about Citizenship before, this should be an easy decision. But then the "Travel Ban" case was easy..and all 4 Liberals voted against Trump. I expect all 4 liberals will find the Constitution can't ask about citizenship because..reasons. And it will be all up to Roberts - the new Justice Kennedy.
Richard Dolan said...
From reading the briefs, I suspect the Gov't will prevail and by better than the 5-4 margin that some are expecting.
2/15/19, 1:55 PM
Ginsburg, Sotomayor, Bryer don't care about the law, they just vote Liberal. Kagen at least pays attention to the law. Roberts seems to care more about SCOTUS reputation.
Richard Dolan do you have a non-WaPo, non-NYT link to the briefs? Thank you very much in advance.
I cannot imagine any one of the four liberals supporting the Trump Administration on this.
As for Roberts, he has become noted for not inserting his Court into disputes between the Legislative (Article I) and the Executive (Article II). I think he is quite happy to rule on questions like the Executive's handling of the census as it sees fit without being flyspecked and supervised by the federal courts. This isn't a legislative prerogative case.
If the question doesn’t distinguish between legal and illegal, just citizen and non-citizen, then I don’t see how the opponents have an argument.
There's nothing keeping a non-citizens from answering the census. Some are just contending on their behalf that they will not.
It's interesting, though, that people seem to want to just keep guessing how many people are in the country illegally.
(I also don't like the incentive citifies have to be Sanctuary Cities if the citizenship question isn't asked. Come live here, because you will bring us more federal dollars and more power than the stupid cities that follow the laws)
If they were making the census available only to citizens, I think they would lose that case. But it is available to everyone to answer.
Oh no! California might lose some Electoral votes! Heh.
"He questioned the motives..."
So many judges, newsies and congress-critters with clairvoyance abilities.
Chuck - the briefs on the cert petition are available on the SCOTUS site -- do a docket search for 18-966 (I think that is the docket number -- if you look at today's order, also available on that site, the number is on it).
What part of the constitution prohibits asking the question?
Are there any questions that are forbidden? Religion practiced? Number of guns in house?, number of abortions in last year? Household income? Debt? number of homosexuals, Transexuals? pre and post op.
Wouldn't it be funny if California shrunk?
stevew said...
We can still exclude Indians not taxed from the count though, which is nice.
What percentage of the illegals here are indinos ? Are they or are they not native stock? I doubt many spanish mexicans are migrating
At some point, the SCOTUS is going to have to smack down Judicial Overreach or governance and the credibility of the courts will be shattered.
Thomas, and I think increasingly Roberts, are getting tired of this shit.
And when the 300+ Trump justices start making DEMOCRAT decisions a delight, and the NYT and WaPo go to bat at ignoring the judiciary, some of the Liberals on the SCOTUS will foresee issues even they can't ignore
Ridiculous that even this has to be litigated....first, we need to kill a bunch of lawyers [and I quickly duck because the blog owner and many of her readers are lawyers].
1: Scotus Blog link to case, with documents: https://www.scotusblog.com/case-files/cases/department-of-commerce-v-new-york/
2: The lefties at Scotus Blog repeatedly claimed to think it was a big deal that SCOTUS removed the Feb 19 arguments from the calendar after the lower court ruled. They also thought it was a big deal that SCOTUS had released a "full calendar" for April arguments, that didn't include this case.
Guess the calendar wasn't as "full" as they thought.
3: "Those opposed to the question argue the census response rate will likely fall if households are asked whether undocumented immigrants are present"
This is a fact out lie. The question only asks if the people there are US Citizens. it does not ask if they're legal immigrants, or illegal aliens.
How do you know someone's on the wrong side: when they feel they have to lie about reality in order to push their position.
4: Blogger Richard Dolan said...
From reading the briefs, I suspect the Gov't will prevail and by better than the 5-4 margin that some are expecting.
Wonderful, if true. I'd settle for 5-4 "Of course you can ask that question!"
This is the best Brief in the case I've seen so far:
https://www.supremecourt.gov/DocketPDF/18/18-966/87825/20190211113737844_18-966acRonaldACassAndChristopherCDemuthSr.pdf
First, the SDNY Decision evidences a striking disregard for limitations associated with review of matters committed to the discretion of administrative officers. These matters are not reviewed to determine their consistency with a judge’s view of better reasoning or of more thoughtfully balanced decision-making. Instead, review should assess whether a decision is so far outside the bounds of reasoned decision-making as to constitute action that is arbitrary (i.e., unreasoned), capricious (based on whim), or abuses discretion (based on reasons that cannot possibly be credited as appropriate grounds for the action being reviewed).
The SDNY Decision describes the course of events that led to the challenged administrative action in great detail. It recites the various considerations advanced by interested parties and those that agency officials offered as well. Yet the tenor of the court’s recitation of these considerations, and its subsequent disposition of parties’ claims, indicates that the court substituted judicial judgment for administrative judgment. When matters are properly presented to them, courts should not abdicate responsibility for seeing that laws are correctly interpreted and are applied according to the administrators’ authorization under law. See, e.g., Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803). These tasks, however, do not include judicial decision on the correctness of administrators’ analysis of particular, contested judgments on matters within their discretion. See, e.g., Fox Television Stations, 556 U.S. at 511–14. Indeed, the decision below would overstep the bounds of the sort of internal evaluation typically done by executive branch officials reviewing major decisions of other officials—even though executive branch review, which takes place within the same branch authorized to implement the law, is naturally in keeping with a more searching inquiry into the grounds for decision.
Second, the SDNY Decision makes a mistake that is both contrary to law and dangerous in its potential effects on governance by seeking to plumb the motivation of administrative decision-makers, rather than evaluating the consistency of their actions with legal standards. See SDNY Decision, at 31–102, 245– 53. This Court has made clear that, in general, for a court reviewing agency action, it is “not the function of the court to probe the mental processes” of the administrator.
If we could get a ruling on this, and have it actually enforced, we'd be well on the road to better government
The same folks objecting to the question have objected in the past to the actual census. They have argued that the actual count in the actual census not be relied upon for the same reasons asserted here -- that some people might be afraid to respond -- and therefore the actual numbers should be supplemented by estimates.
The 1950 census (and likely earlier censuses) included a citizenship question. From 1970 through 2000 the census sent a "long form" with many detailed questions including one about citizenship to about 16% of the population.
If they were making the census available only to citizens, I think they would lose that case. But it is available to everyone to answer.
Is Maybee the only one around with common sense?
It is a different issue whether non-citizens should be counted in the census.
The question of citizenship harms no one, silences no one. It is another liberal trope like voter ID suppresses minority turnout.
There's a plausible argument that the Census can ONLY ask how many people there are in the household. Not their ages, their employment, their sex, or anything else. Just numbers. This is because the census was established in the Constitution to count the number of people in each State and locale for purposes of determining representation in the House and Electoral Votes, so that's all the Census can ask about.
But if you don't buy that absolutist argument, then asking whether someone is a citizen or not is perfectly reasonable. It isn't asking whether the person is an illegal resident, which might be self-incriminating, just whether he/she is a citizen or not. Non-citizen residents are still counted.
In researching my geneaology, I found census records very useful for my ancestors who came here in the 19th Century from Ireland and Germany. The census asked what country they were born in, and when they came to the US. If they had become citizens, the census asked when that was. If you don't buy the absolutist argument that the Census can only ask about numbers, then asking about national origin and date of entry would provide useful information. The claim that illegal immigrants would answer a Census questionnaire if it DIDN't ask about citizenship, but would fail to answer at all if such a question were included, strikes me as counterintuitive.
the ewok at ace of spades, has a riff where Ginsburg, is involved in extraordinary feats, hunting bigfoot, climbing mount Everest, that is a parody of the press's lovefest, those set of devotional candles, in an earlier link is indicative of that,
Chuck said...
The law -- which is an ass in this case -- says that apportionment is based on population, and it includes non-citizens and even illegal aliens. So they do count.
That's the law. But as far as I can tell, it is also the law that the appropriate federal agencies can determine whether to include a citizenship question, just like we ask questions about race and ethnicity on the census.
I really hope the Trump Administration wins this, and my gut prediction is that they will, 5-4.
*************
What law? Got a citation?
AFAIK apportionment is not based on population, but "resident population". It's hard to argue that the latter term encompasses illegal aliens, who are NOT "residents", either of the states they hide in, or the country they sneaked into. have to prove residence to vote in my state, how are all these illegals "living in the shAD
Yeah, some states will treat ILLEGALS as residents, but that has no bearing on the FEDERAL census asking everyone whether they are "U.S. citizenS".
But I agree...I hope the Supremes toss this one out. I've seen a 1910? census form that asks the citizen question. Why that should now be unconstitutional is beyond my ken.
But if you don't buy that absolutist argument, then asking whether someone is a citizen or not is perfectly reasonable. It isn't asking whether the person is an illegal resident, which might be self-incriminating, just whether he/she is a citizen or not. Non-citizen residents are still counted.
*****************************
Yes. Can anyone offer any evidence that a person filling out a U.S. census form has been prosecuted for lying on it?
Does the Commerce department have any enforcement agency to track down people who lie on the census form? Do they report questionable responses to ICE or other federal agencies?
How the fuck would they know?
The whole idea of illegals coming and living here is predicated on the fact they count not only in terms of congressional boundaries, but also in terms of how Federal money is apportioned.
If they don't answer the census, not only does California "shrink" in the House and Electoral College, but also in terms of Federal money sent to the state.
Let's see how welcome people here illegally are once the state, and not the Federal government, picks up the full tab.
The Godfather said...
There's a plausible argument that the Census can ONLY ask how many people there are in the household. Not their ages, their employment, their sex, or anything else. Just numbers. This is because the census was established in the Constitution to count the number of people in each State and locale for purposes of determining representation in the House and Electoral Votes, so that's all the Census can ask about.
****************************
WTF? You need to read this:
https://en.wikipedia.org/wiki/United_States_Census#History
And then this:
"On March 26, 2018 the U.S. Dept of Commerce announced[11] plans to ***re-include a citizenship question*** in the 2020 census questionnaire which has not been included on the long form ****since 1950[12]**** but was part of the short form starting in 1910 until its removal in 2010 (13)
Jeezus, what a dumbass.
California will shrink. Like New York tax revenues are down here. People are leaving faster than they’re being replaced by foreigners
Question: when has a proposed law been questioned based on the fact that some people will violate it?
Asking for a friend.
Maybe I'm being naive, but ideally shouldn't the apportionment of representatives be based upon actual citizens?
"They" seemed to be most interested in taxation -
"Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State."
wholelottasplainin' said...
The Godfather said... There's a plausible argument that the Census can ONLY ask how many people there are in the household.
WTF? You need to read this:
The Godfather is correct. The Census people can, and do, ask all sorts of questions. But nobody has to cooperate with anything other than answering how many people (and maybe how many adults).
So we can all direct more federal funds to our community by adding 10 non-citizens to our census response? /sarc
The number of questions in the decennial census has varied widely since the first in 1790, where census takers logged the name, gender, and race or each member of a household, to 2000, where a multi-page form with dozens of questions was sent to one out of every six households. In 2010, the Census Bureau trimmed the questionnaire to just the basics: name, gender, race, and ethnicity or each person, and whether the dwelling was owned, rented, or "occupied without payment of rent."
In early 1790, several members of Congress argued against a census prior to the next election. Some in the Congress, who advocated an immediate census, noted that those who did not want one were the people from states which were generally regarded as being over-represented in the Congress based on the initial figures provided for in the Constitution. Others were concerned about the questions to be asked in the census, while others felt that more questions should be asked to get a better picture of the citizenry.
For example, on February 2, 1790, Samuel Livermore of New Hampshire lamented that the proposed question about profession would be hard for his constituents to answer, since some had three or four professions, depending on the season. Connecticut Representative Theodore Sedgwick, on the same day, wondered why the questions were not extended further — "The state of society could be ascertained, perhaps, in some degree, by observing [the] proportions."
The final bill, Statute 2 of March 1, 1790, provided that census marshals and assistants be appointed. The marshals were directed to:
"cause the number of the inhabitants within their respective districts to be taken; omitting in such enumeration Indians not taxed, and distinguishing free persons, including those bound to service for a term of years, from all others; distinguishing also the sexes and colours of free persons, and the free males of sixteen years and upwards from those under that age."
The act directed that the names of the heads of families be recorded, the number of white males sixteen and older, the number of white males under sixteen, the number of white females, the number of all other free persons, and the number of slaves. Failure of an assistant marshal to make a return, or to make a false return, was punishable by a $200 fine. Failure of a marshal to do the same was punishable by a fine of up to $800. The questions about profession, and other information Representative Sedgwick spoke of, were not made part of the final census. Census day was set at the first Monday in August, 1790. Failure to cooperate with a marshal or assistant was punishable by a $20 fine.
Note that the 1790 Act, in asking to distinguish between males and females and free persons, was effectively asking whether persons could or could not vote.
As Kevin said, beyond the issue of representation, many Federal program are limited to legals or even citizens. I think Food stamps is one. The Feds should be able to tell CA, we're giving you Food stamp money for your legal and eligible population. Rather than funding you to cover the millions of illegals in your sanctuary, that are not eligible for this program.
Just as an aside: the "plausible argument that the Census can ONLY ask how many people there are in the household" that I referred to in my comment at 5:10 USED TO BE the conservative position. Back in the '60's or early '70's, William Rickenbacker, the son of WWI ace Capt. Eddie Rickenbacker and an Editor of National Review, was prosecuted and I believe jailed for refusing to answer census questions such as how many bathrooms were in his house. It's sad that people who purport to be conservatives mock the pro-freedom position that real conservatives have sacrificed to defend.
There's a difference between (a) being free to refuse to answer census questions and (b) the government having the constitutional authority to ask the census questions.
If the administration loses this case, it will only be because the Commerce Secretary fucked it up. All he had to say was, "Immigration, both legal and illegal immigration are vital matters of public concern, and in connection with that, it's important the Government have accurate information about the numbers of non-citizens in the US." If he had said that, the district court would have said that was a discretionary judgment of the executive branch to which he was bound to defer. Alas, the Commerce Secretary didn't say that, instead he said a bunch of stupid things that contradicted each other and led the district court to decide not to give any deference to the Secretary's discretion.
Question - are non-citizen residents counted fully toward apportionment, or as "3/5 of other persons" per the constitution?
The next best thing to 0 illegals is basing apportionment on 0 illegals.
wholelottasplainin' (5:44 pm):
Without saying that I like the state of the law, I think I can say that it is widely regarded as "settled" law, that the Apportionment Clause (Article I, Section 2, Clause 3) and Amendment XIV, both of which refer to apportionment based upon "the whole number of persons in each state," direct that all underlying law including federal statutory law to count all persons including citizens and non-citizens alike in the census, including legal and illegal aliens.
This article is the closest readable thing to a law review article I know of on the subject:
https://www.everycrsreport.com/reports/R41048.html
I think that what you'll find is that the history of counting non-citizens was part of the discussion of adopting Article I; and it was settled practice before and after the adoption of the Fourteenth Amendment in 1868; and it has been part of accepted law in every enactment and amendment to Chapter 13 of the U.S. Code dealing with the decennial census (that being all of the enabling federal legislation governing the census and apportioning based thereon).
Hope that helps. The article is pretty dense and it reads at a snails' pace. But it's better than reading antebellum case law.
It is a fact that the citizenship question has been on approximately 1/6 of all the census questionnaires sent out since 1950 (1950 was the last year it was on all of the questionnaires). Two exceptions: 1960 (when the question was not asked) and 2010, when no long form questionnaires were sent to anyone. I myself filled out one of the long form questionnaires in the 1990 census. The opponents of the citizenship question are in the untenable position of arguing that while it was OK for the census to include the question in the past, it is not allowable in the present.
As already noted, the objective of the Census has been to determine the number of representatives. That’s it. The fact that the government has decided, historically, to use it for other things is a separate subject.
By adding in more questions, the feds want to determine what the needs of a particular state is, doing an end-run around the representatives of that state. If we accept this historical precedent as an acceptable tool by the feds, then one must accept that it can be used legitimately to further the goals of the feds.
Bottom line, there is no requirement to answer anything beyond what is necessary to establish representation, coercion through federal laws (sic) not withstanding.
Post a Comment