April 24, 2019

"Suppose the Secretary puts in a question about sexual orientation. Suppose he puts a question in about arrest record. Suppose he says, I'm going to have the whole survey in French..."

"We have no role to play no matter how extreme?" Justice Breyer questioned the Solicitor General, who was defending the decision to put a question about citizenship on the 2020 census. (Here's the pdf of the oral argument.)

I couldn't find a story about the argument on the front page of the nytimes.com. I had to do a search, and I came up with this snippet:
The Supreme Court’s conservative majority seems poised to allow the Trump administration to add a question on citizenship to the 2020 census. Adding the question, government experts said, could depress participation in the census (about 6.5 million people might not be counted) and affect how congressional seats are allocated. 
Ah, that links to the Adam Liptak report on the argument. Here. Excerpt:
The case, the latest test of executive power in the Trump era, was heard by the court against the backdrop of the administration’s aggressive efforts to reduce illegal immigration as well as accusations of bad faith against the architect of the revised census questionnaire, Commerce Secretary Wilbur Ross....

The court’s decision, expected in late June, will be consequential. By one government estimate, about 6.5 million people might not be counted if the citizenship question is allowed. That could reduce Democratic representation when congressional districts are allocated in 2021 and affect how hundreds of billions of dollars in federal spending are distributed. Courts have also found that Arizona, California, Florida, Illinois, New York and Texas could risk losing seats in the House, and that several states could lose federal money....

Justice Neil M. Gorsuch noted that questions about citizenship had been asked on many census forms over the years and are commonplace around the world.... Justice Brett M. Kavanaugh also discussed international trends. “The United Nations recommends that countries ask a citizenship question on the census,” he said. “And a number of other countries do it. Spain, Germany, Canada, Australia, Ireland and Mexico ask a citizenship question.”...

Dale E. Ho, a lawyer with the American Civil Liberties Union, said the citizenship question would do more than suppress the response rate. It would also introduce inaccuracies, he said. “The evidence shows,” he said, “that noncitizens respond to the question inaccurately one-third of the time.”

The more liberal justices said that was a reason to defer to expert statisticians in the Census Bureau who opposed adding the question.... 

154 comments:

Swede said...

Suppose he does?

Who is the Secretary answerable to?

The president.

Who is answerable to the people.

Which is why I'm not worried about the Secretary asking stupid questions on the census.

This really doesn't seem that hard.

Ken B said...

Big news if true. Breyer supports an official language? The ACLU says a third of immigrants are liars? Big news, both of these.

Shane said...

"The more liberal justices said that was a reason to defer to expert statisticians in the Census Bureau who opposed adding the question...."

"...expert statisicians in the Census Bureau..." is code for "...lifetime unaccountable bureaucrats...you know, like Strzok, Paige and McCabe and the others at Justice and the FBI..."

gahrie said...

Questions about citizenship have appeared on past census forms, so, absent legislative action, how can they be unconstitutional today?

Ken B said...

Isn’t it obvious, based on the objections raised, that Trump should win? The objections are to whether the change is a good idea. Deciding if it’s a good idea is not for the courts to decide. If those are the objections, policy concerns, it should be a slam dunk.

tim maguire said...

Some questions:

1) Does the citizenship question help the census meet it's constitutional purpose?

Given that the census is full of questions irrelevant to its core purpose, it seems to me that even if the answer to #1 is no, it should still be allowed unless it interferes with the census' core purpose. We have an estimate from "experts" that it will lower participation by at least 6.5 million.

2) What are these estimates of lower participation based on? Do they have any validity at all?

Ann Althouse said...

It's pretty clear Trump will win this.

Ignorance is Bliss said...

You are required by law to answer the survey accurately.

I have been assured repeatedly that immigrants are exceedingly law-abiding.

So where is the problem?

Greg Q said...

Reading the transcripts, I was really sad that Francisco didn't say something like this:

Justice Sotomayor, the people you're quoting aren't "experts", they're just statisticians.

What's more, they are civil servants. Which means they can't be fired, but it also means they have NO legitimate role in making policy.

Political appointees make policy and political decision. Non political gov't employees, which includes judges and Justices, enforce the law, report on options, and let the political decisions be made by the people who are accountable to the voters.

The decision that accurate CVAP is important is a political decision. Which means your disagreement with that political decision is irrelevant. If you want to disagree with it, you are welcome to resign from the Supreme Court, and run for political office. The same is true for the statisticians employed as civil servants.

NOT civil masters.

Please, stop being an enemy of democracy, and stop being a domestic enemy of the US Constitution

Bay Area Guy said...

The transcript is quite illuminating. You see what a political hack Sotomayor is. She just starts badgering the Solicitor General out of the box, with trivial bullshit, losing sight of the big picture.

Did Congress enact a statute giving vast discretion to the Executive Branch to handle the Census? Yes.

The Secretary shall perform the functions and duties imposed upon him by this title, may issue such rules and regulations as he deems necessary to carry out such functions and duties, and may delegate the performance of such functions and duties and the authority to issue such rules and regulations to such officers and employees of the Department of Commerce as he may designate.

The Treasury Secretary can basically do what he wants to carry out the census.

End.Of.Story.

EDH said...
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Dave Begley said...

Typical nutty hypos by Breyer. Those questions are not on the census.

“The evidence shows,” he said, “that noncitizens respond to the question inaccurately one-third of the time.”

What evidence? Is that in the record?

I LOVE how the Left speculates that non-citizens won't respond at all. Pure speculation. That's not evidence. And if illegal aliens are afraid to respond, then too bad. That's their problem; not ours.

Paul said...

I think they make the census questionnaire already in SPANISH judge... duh..

viator said...

Apparently Justice Bryer likes straw man arguments, an informal fallacy, which is disappointing in a Supreme Court Justice.

Birches said...
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EDH said...

"We have no role to play no matter how extreme?" Justice Breyer questioned the Solicitor General.

Why did Breyer use the word "extreme" rather than analogous?

Seems like Breyer wanted a comparison of the citizenship question to something extreme rather than analogous to it.

So, no, Justice Breyer, the citizen question is not extreme, your examples are NOT analogous, and short of "extreme" constitutional violations the "role to play" is congress'.

rhhardin said...

The fine for not answering is lots smaller than the fine for lying. This introduces a bias against responding.

Dave Begley said...

Justice Kavanaugh asked real judge questions. He's a real lawyer. Glad he's on the Court.

Every day RBG is sitting on the bench she must regret not retiring when Obama was President.

Greg said...

If they don't ask the question, then 100% of illegal non citizens will be lying since they don't admit to not belonging in the country. 33% telling the truth would be an improvement.

Bay Area Guy said...

Expert government statisticians in the Census Bureau?

Who elected them?

Our Supreme Court has 4 leftwing knuckleheads who have policy preferences, and for some reason, they think it's kosher to impose their policy preferences onto the people of America, under the cloak of judicial reasoning and authority.

I understand that some folks don't wanna be asked if they are citizens. Tough shit. The guy elected by the people wants his Treasury Secretary to ask the question. That's how it works.

Lucien said...

I thought the issue is whether the question was added arbitrarily and capriciously in violation of the APA. Since the citizenship question has been asked in earlier censuses, it should be obvious that the question is permitted on the merits.

Dave Begley said...

Viator

The straw man fallacy was Obama's favorite. He used it constantly. Biden wouldn't know a straw man if he came up and smacked him in the face.

Birches said...

I'm pretty sure Progressives wanted the census to ask sexual orientation a few years ago. The government asks questions to get a better idea of the populace. The liberals only object because of the administration doing the questioning.

James K said...

We have an estimate from "experts" that it will lower participation by at least 6.5 million.

Experts. What would we do without them.

If the question only asks about citizenship, and not about legal status, why would anyone fear answering it? There are tens of millions of legal non-citizens in the country.

Birches said...
This comment has been removed by the author.
CJinPA said...

We have no role to play no matter how extreme?

Isn't there a term for arguing against an idea by first taking it to its absurd extreme?
Isn't the purpose of the census to count citizens for the purpose of apportioning representation and appropriations?

Since non-citizens should not be voting or receiving government resources, there is no legitimate reason to include them in a count of actual citizens. A healthy nation would not be arguing this.

The Supreme Court’s conservative majority seems poised to allow the Trump administration...

That's the only sentence in the article that matters to the NYT. This is a version of "Trump's hand-picked Attorney General." The neon sign that tells readers this is partisan, not judicial.

Dave Begley said...

Bay:

Yeah. Elections have consequences.

Anonymous said...

The Administration may well win. But what was most concerning from a rule-of-law perspective is that the key legal issues concern whether the Administration complied with the Administrative Procedure Act, which requires (among other things) a rational, nonpretextual explanation that is consistent with information in the administrative record (not reasons simply asserted during litigation, as Justice Kagan noted). The lower courts have made very strong cases for why the Administration violated the APA (as well as other procedural requirements). Under the APA, as it stands, the Administration should lose easily and the matter remanded to the agency. Perhaps the majority thinks that its prior discussions of the APA are wrong, but there was no discussion at oral argument about overturning or revising those precedents. And, as always in administrative law, be careful about the rule that you want. If the APA is whittled down here, it should be equally as toothless when a Democratic Administration comes into power. If it suddenly finds teeth then, well, we don't have the rule of law any longer.

Greg Q said...

I love this comment to Sotomayor. Francisco did this several times, trying to politely make the point I made above, which is "you're trying to act like a policy maker, not a judge":

GENERAL FRANCISCO: So, Your Honor, there's a whole lot in that question, but I think I will start with where you ended. And if you really think 6(c) is a problem, then we really cannot ask the citizenship question on the American Community Survey since that is just as subject to 6(c) as the census is.

GENERAL FRANCISCO: But, Your Honor, your question -- your question is about 6(c). 6(c) applies to the ACS and it applies to the census.

And sex and age information, which we ask on the census, is also available in administrative records. Indeed, administrative records are more accurate with respect to sex and age because, presumably, your birth date and your sex don't change over the course of time, whereas your citizenship status does.

So, if you really think that 6(c) is a problem, we can't ask it on the ACS and we can't ask sex and age on the census, so that's why I think that is plainly wrong. It really does boil down to whether the Secretary's judgment here is a reasonable one.


So, Professor, your question from yesterday is answered: Sex is unchanging, and therefore not the same as gender

Dave Begley said...

James K

Some experts say if we don't act now, life on Earth will end in 12 years. These same experts, however, have been wrong for decades. They are making predictions.

I predict that the Badgers will lose every single football game next season. But if I'm wrong, be sure to listen to my predictions for the season after that. I'm a expert! Don't penalize me for being wrong. Science!

Original Mike said...

"Suppose the Secretary puts in a question about sexual orientation. Suppose he puts a question in about arrest record. Suppose he says, I'm going to have the whole survey in French...""We have no role to play no matter how extreme?"

If he did have the whole survey in French Breyer might have a point, but asking a question about CITIZENSHIP on the CENSUS is about as far from extreme as you can get.

Boca Condo King said...

90% of our illegal immigration problem has to do with cheap labor.

Forgot the congressional apportionment issues, I want to see the census cross tabs on illegal immigrants. The census asks things as mundane as how many bathrooms in a dwelling etc.

How many bathrooms to citizens vs. how many bathrooms to illegals?
How many bedrooms to citizens vs. how many bedrooms to illegals?
Same question on Cars, kitchens, air con etc. etc. etc.

Having a better idea of how illegals live vs. citizens will help highlight how much of the issue is rich and middle class people having luxuries in the form of services from cheap labor. And the living standards of that cheap labor.

Remember there is no job done by an illegal that cannot be done by a face tatted ex convict with a drug issue for twice the cost of the illegal.

Make the argument about cheap labor, that is the winner.

pacwest said...

Both representation (graft) and federal dollars (graft) are at stake here.

hombre said...

Two things apparently do not occur to Justice Breyer: 1. The phrase “logical relationship; 2. The premise that not every misstep by the other branches needs to be remedied by the judicial branch simply because some speculative prejudice may result to some speculative victim.

Greg Q said...

Anonymous said...
The Administration may well win. But what was most concerning from a rule-of-law perspective is that the key legal issues concern whether the Administration complied with the Administrative Procedure Act, which requires (among other things) a rational, nonpretextual explanation that is consistent with information in the administrative record (not reasons simply asserted during litigation, as Justice Kagan noted).

Bzzt.

Wrong.

The big benefit to having been elected, by the voters, to political office is that you get to impose your policy preferences, rather than the other team's policy preferences.

All Ross needs is a rational justification for his policy choice.

Here, this was even address by Francisco. It's how he ends his direct. And it's really beautiful, the way he maneuvered it so he could end on this, w/o the left wing thugs getting to respond:

GENERAL FRANCISCO: Yeah. Sure. And I have two responses, Your Honor. And then, if I may, I'd like to reserve the remainder of my
time for rebuttal.[IOW: Shut up and let me talk]

First, I think it is quite common for cabinet Secretaries to come into office with ideas and inclinations to discuss with their staff and discuss with their colleagues whether there is a legal and policy basis for that inclination.[IOW: He's a political appointee. The purpose of a political appointee is to implement the policy choices of the new President. NOT the policy choices of the previous President, or of the gov't bureaucrats]

Secondly, there's no evidence in this record that the Secretary would have asked this question had the Department of Justice not requested it. And there's no evidence in this record that the Secretary didn't believe that the Department of Justice actually wanted this information to improve Voting Rights Act enforcement. [IOW: you can not simply claim "that's pretextual." You must prove, by providing actual evidence, that there's no legitimacy. And you haven't done that. So get stuffed, lefties]

CJinPA said...

And, as always in administrative law, be careful about the rule that you want. If the APA is whittled down here, it should be equally as toothless when a Democratic Administration comes into power.

I used to make those kinds of arguments. "Beware the precedent."

Then I realized my country was being changed by people who care not one iota about precedents. They are going to trample them anyway. That is, try to imagine the difference in the behavior of the dominant Left if we do NOT give them an opening to skirt the law, and if we DO.

I honestly see no difference in the long run. When the Left says, By Any Means Necessary, they mean it.

Mattman26 said...

Let me unqualifiedly (in all senses of the word) call bullshit on the experts estimating the "undercount" at 6.5 million people. Something like 2 percent of the people in this land will decline to participate because there's a question asking if they're citizens? I find that very difficult to believe.

I would be inclined to think (and I suspect most people would) that non-citizens shouldn't carry any weight in apportioning representatives. But the constitution seems to phrase it in terms of counting "persons," and I think I read somewhere that by statute it should be based on those here legally (whether citizens or not).

TWW said...

"By one government estimate, about 6.5 million people might not be counted if the citizenship question is allowed."

Or...

"By one government estimate, about 6.5 million people will break the law if the citizenship question is allowed."

Greg Q said...

JUSTICE ALITO: On the modeling, there was a lot of talk during the first part of the argument about -- I think it's 22.6 million people who it would -- it is predicted would answer the citizenship question and as to whom there is not administrative data.

And there was an estimate that those answers would be 98 percent accurate. And the comparison then has to be between that
98 percent predicted accuracy rate and whatever the accuracy rate would be for the model.

And is there anything in the administrative record that shows that the model was tested and that it was possible to extract a -- a predicted error rate for the model?

MS. UNDERWOOD: What we have -- what we have is that this -- the model hadn't been generated, but what we have is the Census Bureau saying this is like other modeling that we routinely do. We're confident that we can do it.


Sure. And the Federal ObamaCare signup website hasn't been built, but we have a lot of programmers who routinely build websites, so we're confident we can do it on time and on budget.

Shall we review that history?

Sorry, but Ross would deserve to be fired, for idiocy, if he bought that line

Anonymous said...

Greg Q said...

Anonymous said...
The Administration may well win. But what was most concerning from a rule-of-law perspective is that the key legal issues concern whether the Administration complied with the Administrative Procedure Act, which requires (among other things) a rational, nonpretextual explanation that is consistent with information in the administrative record (not reasons simply asserted during litigation, as Justice Kagan noted).

Bzzt.

Wrong.

The big benefit to having been elected, by the voters, to political office is that you get to impose your policy preferences, rather than the other team's policy preferences.

All Ross needs is a rational justification for his policy choice.

Mine was an accurate statement of existing law; nothing controversial about it. There is a debate over exactly what role purely political considerations in agency decisionmaking. But even assuming, relying on political priors is permissible, one still has to provide an explanation and tie it to the existing administrative record. I'm agnostic on the particular question here (if anything, I tend to support the question's addition), and the Secretary, I think, could have taken that approach by creating a better record and explanation. But I can see based on other comment in this tread, that process is not appreciated by many here. The ends justify any means (a similar view taken by many on the left). I don't agree.

MountainMan said...

Since the censuses taken in the late 1800's this question, with only a couple of exceptions, has appeared on just about every census, for everyone or for the select few that received the additional more detailed questionnaire. There is no question it should appear now. My wife an I are very active amateur genealogists and we look at census records all the time and see citizenship-related questions frequently, as well as questions about prior residency and country of birth.

You can see the questions asked on every census in our history on the Census Bureau web site at the Index of Questions.

MountainMan said...

Sorry, that link had a typo. Here is the correct link:

Index of Questions

Openidname said...

Since when do courts defer to government statisticians rather than to cabinet officers or the President?

Seeing Red said...

Did no one look at that damn I think it was 2000 census? Wasn’t it 20 pages? The only thing missing was the proctology exam.

Greg Q said...

This line of questioning by Alito makes me sad (edited for clarity):

JUSTICE ALITO: Well, the response rate is very important, so can I ask you a question about that?

A lot of your argument and a lot of the district court's argument seems to hinge on this prediction that there will be 5.1 percent fewer responses if the citizenship question is included on the census

But that is based, as I understand it, on the fact that non-citizens are somewhat less likely to [return] the ACS [or the long form], which includes the citizenship question, than are citizens. Am I right in understanding that? That's fundamentally where that comes from?

...

But what jumps out is the fact that citizens and non-citizens differ in a lot of respects other than citizenship. They differ in socioeconomic status. They differ in education. They differ in language ability.

So I don't think you have to be much of a statistician to wonder about the legitimacy of concluding that there is going to be a 5.1 percent lower response rate because of this one factor.


1: I think the citizenship question is entirely legitimate, and should be asked
2: I hope that every single alien in the US illegally (including those here on DACA) refuses to return their Census form
3: But Alito is right here: there is not one shred of scientific or statistical legitimacy behind that 5.1% claim. There were 7 questions on the 2000 Census short form. There were 53 on the US Census long form. The idea that all of the drop off came from 1 of the 46 additional questions is fundamentally crackpot.

So, I'm sad to say, that while I'm pretty sure the question will be allowed, I'm also pretty sure it won't have the effect the lefties and "experts" claim.

Seeing Red said...

And I remember reading a reason for it from a quoted fire or police dept. person, in case you have health issues and they come to your house, they need that info.

EDH said...

A Brief Overview of Rule-making and Judicial Review
Todd Garvey, Legislative Attorney CRS
March 27, 2017

Rather, a court should only invalidate agency determinations that fail to “examine the relevant data and articulate a satisfactory explanation for [the] action including a ‘rational connection between the facts found and the choice made.’” When reviewing that determination, courts must “consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.” In general, the Court noted that an agency decision is arbitrary and capricious: if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise. Fundamentally, the arbitrary and capricious standard requires only that an agency demonstrate that it engaged in reasoned decision-making by providing an adequate explanation for its decision...

Judicial Review of Rule Repeals or Other Changes in Agency Policy

Agencies are generally accorded the flexibility to depart from previously established positions by altering or repealing rules or other agency pronouncements. Administrative decisions are not “carved in stone,” but rather vary on a nearly “continuing basis ... in response to changed factual circumstances, or a change in administrations.”Yet in executing a significant policy change or other reversal, the agency is required to comply with applicable APA procedural requirements. Thus, in regard to amending or repealing rules, the agency generally may implement such a change only through notice-and-comment rule-making. In addition to these procedural requirements, an agency rule that implements a policy change by amending or repealing an existing rule is also subject to arbitrary and capricious review. Although the precise application of that review to an agency change in position is subject to some debate, the Supreme Court has stated that judicial review is not heightened or more stringent simply because an agency’s action alters its prior policy. Specifically, the Court has held that there is “no basis in the [APA] or in our opinions for a requirement that all agency change be subjected to more searching review” or that “every agency action representing a policy change must be justified by reasons more substantial than those required to adopt a policy in the first instance.” Instead, arbitrary and capricious review requires only that the agency provide a “reasoned analysis for the change.”

eric said...

Prediction: Democrats will find a way to tell illegals to lie on the census without making it seem like they're telling them to lie.

Megthered said...

I have been doing my family genealogy for years and the question of naturalization and citizenship had always been on the census, including the year of naturalization and year of citizenship. They also asked if you were married, how many children, if you were working, where you worked and what you did. They did the census in prisons, in orphanages, asylums, military installations. No one was butthurt. They answered the questions and went on with their lives.

stlcdr said...

Firstly, there's a laundry list of irrelevant questions on the Census.

The Census, by my understanding of the Constitution, is to determine the number of representatives. Since non-citizens cannot vote for representatives, it stands to reason that they are not representatives of those non-citizens. Therefore, it's important that the apportionment of representatives are based solely on citizens.

As someone who transitioned from non-citizen to citizen, partly in reason so that I would be represented, I believe this is an important distinction.

Greg Q said...

Anonymous said...
Mine was an accurate statement of existing law; nothing controversial about it. There is a debate over exactly what role purely political considerations in agency decision making. But even assuming, relying on political priors is permissible, one still has to provide an explanation and tie it to the existing administrative record.


Your first two sentences contradict each other. If there was "nothing controversial" about it, then there would be no "debate" about it.

The operative rule appears to be "Democrats may make policy preferences, Republicans can not." I hope you'll forgive me for refusing to accept that rule.

Ross has an actual system that we know will work: ask people questions, and collect their answers.

The opposition has a "model" that hasn't been created, but "they're really, really sure it will be awesome and do everything anyone could want." And some utterly garbage "science" to support their 5.1% drop rate claim (see previous comment about that).

With an honest Court, this would be a 9 - 0 slam dunk for the Trump Admin.

Crimso said...

"What are these estimates of lower participation based on? Do they have any validity at all?"

One would think that the opposite (an increased participation due to the question being removed) could be reasonably estimated, since the question has been asked in the past. If these estimates aren't based largely on what happened after the question was removed (and I don't know if they are or not), then they're ignoring the existing data that are as close as possible to actually doing the experiment.

"If it suddenly finds teeth then, well, we don't have the rule of law any longer."

It's been gone for a while now.

Nonapod said...

Therefore, it's important that the apportionment of representatives are based solely on citizens.

That may be they way it should be. But from what I understand the history of how the apportionment (as well as a state's taxes) was determined had more to do with a states capacity for wealth generation. And to determine a state's wealth generation, population was used rather than something else like land. It's the reason the whole three-fifths compromise thing happened. But they still didn't count native Americans.

If wealth generation is the determiner, perhaps an argument that since illegal aliens (theoretically) aren't paying income tax they could count against the apportionment rather than for it. But good luck making that argument.

bagoh20 said...

I'm sure it's a really difficult and complicated task for a government bureaucracy, but I can fix this problem by just adding 6.5 million to the count. I'm sure there are factors that throw off the count by even more than that. I bet they simply make math errors and lose surveys that add up to millions.

bagoh20 said...

We should do the census by weight. Women would count as 3/5th of a man on average. That seems fair to me.

mockturtle said...

Being a non-citizen doesn't imply illegal status [although that would make a good census question, as well]. There are many legal resident aliens here who presumably will not object to being asked.

Darrell said...

Once they started asking about toilets on the super-long forms, it opened the door for every other question.

BleachBit-and-Hammers said...

The collective left are universally committed to illegal entrants.

Jim Gust said...

As usual the alleged primary argument is a distraction, a smokescreen.

No one is really worried that some noncitizens won't participate. They are really worried that everyone will participate and answer truthfully, and then we'll learn that there are far more noncitizens living in this country than we have been led to believe. Subtract those with green cards from that total, we get a true picture of the population if illegal aliens.

That is knowledge that the Democrats don't want us to have.

Unknown said...

This is awful. Next thing you know, they'll start asking you to prove you're eligible to vote before doing so. How can we get illegal aliens to vote if that happens? We Democrats will oppose this every way possible.

WisRich said...

eric said...
Prediction: Democrats will find a way to tell illegals to lie on the census without making it seem like they're telling them to lie.

4/24/19, 10:30 AM
-------

Heh, you're more cynical than I am. I just figured there would be an all out publicity effort to get everyone, e.g. illegals, to answer the census.

I hadn't even thought of the next step of them promoting fraud but yes, I could see it.

The Drill SGT said...

That could reduce Democratic representation when congressional districts are allocated in 2021 and affect how hundreds of billions of dollars in federal spending are distributed. Courts have also found that Arizona, California, Florida, Illinois, New York and Texas could risk losing seats in the House, and that several states could lose federal money....

Beyond the voting issue, many Federal programs are limited to legals. Counting Illegals inappropriately funds Sanctuary locations.

gahrie said...

I'm sure it's a really difficult and complicated task for a government bureaucracy, but I can fix this problem by just adding 6.5 million to the count.

IIRC, the last two censuses the Left has wanted to do a guesstimate instead of an actual enumeration.

MadTownGuy said...

The NYT said...
"The more liberal justices said that was a reason to defer to expert statisticians in the Census Bureau who opposed adding the question.... "

That's not a reason; it's an excuse.

Bruce Hayden said...

“Anonymous said...
The Administration may well win. But what was most concerning from a rule-of-law perspective is that the key legal issues concern whether the Administration complied with the Administrative Procedure Act, which requires (among other things) a rational, nonpretextual explanation that is consistent with information in the administrative record (not reasons simply asserted during litigation, as Justice Kagan noted).”

I practiced law in a part of the law that is heavily administrative (patents and sometimes TM and C/R). And agencies routinely violate the APA. The USPTO routinely seems to lose track of the difference between internal rules and formal regulations duly adopted after proper Notice and Comment. The question is whether they can bind applicants, or just their employees. We fought several in recent years that substantively would have changed substantive rights. One or two were pulled back at literally the eleventh hour after appeals to the Obama OMB and Cass Sunstein, their regulatory czar. The regulations were pulled back after close of business on the day before they were to go into effect. Not knowing that they would be pulled back meant a fire drill for the entire patent bar the last week or two before they were to become effective costing clients many millions of dollars. That was most of a decade ago. They still are trying the same thing on a routine basis, hoping that the cost of compliance is lower than the cost of appealing the new rules. I should add that the practice of patent law uses a number of forms, and the USPTO routinely also skips getting OMB clearance for form changes, in compliance with the Paperwork Reduction Act. In any case, holding government agencies to account for not following the law, notably for ignoring significant provisions in the APA and PRA, is important because of the tendency of government bureaucrats to cheat, when they can get away with it. My experience is that if they aren’t held to account, a lot of the will cheat.

AJ Lynch said...

I don't view it as Trump winning. It's a win for the rule of law and for the American citizenry.

Char Char Binks said...

Why should they be allowed to ask for anything more than a head count?

Char Char Binks said...

If even that.

Bay Area Guy said...

Those inner city gerrymandered congressional districts are fun!

You get some wonderful Democrat representatives, who really care about the Republic.

1. AOC
2. Ilhan Omar
3. Rashida Tlaib
4. Hank Johnson
5. Maxine Waters

You think if lives were at stake and the big shit ever hit the fan, (say a bombing of Pearl Harbor or nuclear missiles positioned in Cuba) these fools would lead you out of harm's way? Somehow, I doubt it.

Left Bank of the Charles said...

"It's pretty clear Trump will win this."

Yep. The City of Cambridge sends out annual census forms, as required by Massachusetts law, which ask one to one to identify one's nationality if not a US citizen. It also asks for the number of dogs in the household. That's a curious question as the purpose of the census is to maintain an annual street listing of residents for voting purposes.

Michael K said...

Why should they be allowed to ask for anything more than a head count?

The 1874 Canadian census asked how many horses and cows my great grandfather had. It included how many bushels of carrots and potatoes. Why not inquire as to how many burdens on the tax payers there are ?

Michael K said...

My experience is that if they aren’t held to account, a lot of the will cheat.

Asset forfeiture law proves that,

BarrySanders20 said...

"Courts have also found that Arizona, California, Florida, Illinois, New York and Texas could risk losing seats in the House, and that several states could lose federal money."

There goes Liptak again seeing the glass as half-empty, The number of reps is a zero-sum game, so which states stand to gain seats? And which states stand to gain additional federal dollars? My guess is that it is all about red vs blue (except for Texas).

Focus on the positive, my East Coast fellow!

Anthony said...

>>We have an estimate from "experts"

Top.

Men.

Yancey Ward said...

This should be a 9-0 decision, but is sure to be 5-4 one way or the other.

The objections raised by the plaintiffs and the jurists that supported them in the arguments- that the question itself might be bad policy and lead to inaccurate results- are admissions that the court itself doesn't really have the right to answer whether or not to move forward with the question. Note the argument that the statistics experts in the department should have the final say- they are executive branch officials themselves- if your position is that they should have the final say, then you can't argue that the department's leader can't also make that final decision.

Danno said...

Like MountainMan and gahrie said or inferred, citizenship questions were on Censuses taken as late as 1950. As a genealogical knowledge seeker, I have found one of my great-great-great grandfather's naturalization documents in the familysearch.org website, and have gone to the various 1800s to early 1900s Censuses to corroborate family history info. This case is pure politics.

Kevin said...

seems poised to allow

There’s some informative legal analysis by the NYT.

No wonder their readers think the court can rule however it wishes.

Yancey Ward said...

"That's a curious question as the purpose of the census is to maintain an annual street listing of residents for voting purposes."

Well, no- that isn't the only purpose of doing a census. The very fact that they ask other questions that don't relate to voting should be telling you that the information is useful for other purposes- else they wouldn't be asking them- it would be a straight up headcount.

Rusty said...

If federal funds are apportioned by population shouldn't that population be citizens?

Leland said...

Some reporting I heard yesterday went along the lines of the Justices wondering why so many other questions could be asked, but not citizenship. I don't understand how asking someone's race is acceptable, but not citizenship. Can't the US move away from making decisions based on people's race? Hispanics, Asians, and Pacific Islanders are asked to be specific on nationality, yet that doesn't suppress their response?

I'll give credit, the 2010 Census got rid of that atrocity from the Clinton's the 2000 Census long form. Example: Question 17b "Because of a physical, mental, or emotional condition lasting 6 months or more, does this person have any difficulty... dressing, bathing, or getting around inside the home?" Can you imagine the questions on the 2020 Census if Hillary had been elected?

Yancey Ward said...

KenB beat me to it.

Ann Althouse said...

"It's pretty clear Trump will win this"

Should win this, but if the administration wins, it will be only 5-4, and I could easily see Roberts taking the opportunity to poke Trump in the eye. So I am not confident at all predicting the actual result.

wildswan said...

Census Data is now available to "researchers" including graduate students at many universities. Such access is granted at 12 universities in the New York area alone. And no need to worry. We all know how good the Federal government is at making sure there are no searches being conducted for political or other purposes. And one of the universities is Yale so it's all good.

Cornell University:
Cornell Census Research Data Center (RDC, access to supposedly private census data: “… RDCs are secure facilities managed by the Census Bureau that provide secure access to a range of restricted-use microdata for statistical purposes only. Researchers must have an approved project before conducting research at an RDC. The NYRDC operates three labs, one at Baruch College-CUNY, one at Cornell University as part of CISER (Cornell Institute for Social and Economic Research), and one at Yale University. The NYRDC is a consortium of 12 universities and research institutions in New York, New Jersey, and Connecticut. Membership in the NYRDC Consortium covers access fees for faculty members, graduate students, and researchers affiliated with member institutions.” https://nyrdc.cornell.edu/

Main Federal website for RDC's
https://www.census.gov/fsrdc

wildswan said...

List of places where select graduate students can access Census micro data.

https://www.census.gov/about/adrm/fsrdc/locations.html

Atlanta Founded in 2011, the Atlanta RDC is located in the Federal Reserve Bank of Atlanta and attracts researchers from across the Southeast.

Boston Founded in 1994, the Boston RDC is located at the NBER in Cambridge and provides secure data access to researchers from across New England.

California - Berkeley Founded in 1998, the California RDC at Berkeley is located on the UC Berkeley campus, and serves researchers from the Bay Area to Northern California.

California - Irvine Opened in late 2014, the California RDC at Irvine is located in the Social Sciences Gateway Building on the University of California, Irvine campus.

California - Stanford Founded in 2009, the Stanford RDC operates in partnership with the California RDC, serving San Francisco peninsula and Northern California researchers.

California - UCLA Founded in 1998, the California RDC at UCLA is located on the UCLA campus and provides data access to researchers in southern California.

California - USC Founded in 2014, the California-USC RDC is located on the campus of the University of Southern California.

Census Bureau Headquarters The Census Bureau Headquarters RDC is located in Suitland, MD and serves researchers throughout the Washington, DC metro area.

Central Plains Opened in November 2015, the Central Plains RDC serves researchers at universities within the Central Plains region.

Chicago Founded in 2003, the Chicago RDC consortium includes the Chicago Fed, Northwestern University, the University of Chicago and the University of Illinois.

Dallas-Fort Worth Opened in 2018, the Dallas-Fort Worth FSRDC is located in the Federal Reserve Bank of Dallas and provides access to researchers in the region.

Georgetown Opened in 2017, the Georgetown RDC is located at the Massive Data Institute at Georgetown University’s McCourt School of Public Policy.

Kansas City Opened in February 2016, the Kansas City RDC is located at the Federal Reserve Bank of Kansas City and attracts researchers from across the region.

Kentucky Opened in 2017, the Kentucky RDC is located on the University of Kentucky campus in Lexington, and will serve researchers in the East-Central region.

wildswan said...

2 of 2 Census Bureau RDCs

Maryland The Maryland RDC is a joint project of the Robert H. Smith School of Business, the College of Behavioral and Social Sciences, and the School of Public Health.

Michigan Founded in 2003, the Michigan RDC is located at the University of Michigan's Institute for Social Research in Ann Arbor.

Minnesota Founded in 2010, the Minnesota RDC supports researchers at the University of Minnesota and welcomes other researchers from the Twin Cities and Upper Midwest.

Missouri Opened in November 2015, the Missouri RDC is located at the Ellis Library on the University of Missouri campus, and serves all researchers in the region.

New York - Baruch Founded in 2005, the NYRDC-Baruch is located at Baruch College-CUNY in New York City and serves researchers in New York, New Jersey and Connecticut.

New York - Cornell Founded in 2005, the NYRDC-Cornell is located in Ithaca and provides data access to researchers in the Finger Lakes region of New York State.

Northwest Founded in 2012, the Northwest RDC is located in Seattle and provides secure access to restricted data for researchers in the region.

Penn StateFounded in 2014, the Penn State RDC is located in the Paterno Library in the center of the University Park campus.

Philadelphia Opened in 2017, the Philadelphia FSRDC is located in the Federal Reserve Bank of Philadelphia and attracts researchers from across the East.

Rocky Mountain Opened in 2017, the Rocky Mountain RDC is located at the Un. of Colorado Boulder and serve researchers along the Front Range of the Rocky Mountains.

Texas Founded in 2012, the TXRDC is located at Texas A&M University in College Station, Texas and provides data access to researchers in the region.

Texas - UT Austin Opened in 2017, UT-Austin provides researchers in central Texas secure environment to access federal statistical data.

Triangle - Duke Founded in 1999, the Triangle RDC serves the social science research community across North Carolina and southern Virginia.

University of Illinois Urbana-Champaign (Opening 2018) Opening in 2018 the UIUC FSRDC provides researchers with the opportunity to conduct approved research projects using confidential federal data.

Wasatch Front To be opened in 2019, The WFSRDC is located at the University of Utah in Salt Lake City, Utah.

Wisconsin Opened in September 2015, the WiscRDC is located in the heart of the UW Madison campus, and serves a strongly interdisciplinary community.

Yale Founded in 2015, the Yale RDC serves researchers in New York, New Jersey, and Connecticut.


Skippy Tisdale said...

Mountainman said:

"My wife an I are very active amateur genealogists"

For some reason I ea that as amateur gynecologists and thought, wait, what?

Bruce Hayden said...

"The more liberal justices said that was a reason to defer to expert statisticians in the Census Bureau who opposed adding the question.... "

Wen I worked for Census, four decades ago, there were a lot of statisticians down the hall from us, and some of them were posted to us to work on the Decennial Census. Good guys, but, as with most federal civil servants, mostly Democrats. Still despite their political biases, I do trust their modeling here. But I don’t really care - it was a political decision to eliminate those questions, and a political decision to add them back in.

Bay Area Guy said...

According to the Pew estimate, there are about 11 - 12 Million illegal immigrants in the US. I've seen estimates as high as 7% of the population, which is about 20-23 Million.

Soft data, Yes.

A new development in the past 20 years is that the Left (a) does not care if these folks become citizens or not and (b) does not care that they entered the country illegally.

The Left likes the cheap labor (as do Chamber of Commerce Republicans). They Left likes the illegal registration and voting. The Left likes the increased govt spending on social services for illegals. The Left likes that they helped turned California blue. The Left really, really wants them to turn Texas blue.

But the Left does not want them formally counted. The Left likes them in the shadows. Easier to organize into demonstrations, easier to serve political needs.

If illegal immigrant voting had padded the Texas voter rolls, to turn Texas blue, well, Hillary would now be our President. My working hypothesis is that's why Beto was so popular - he gave Texas the best chance in years to get a prominent Dem elected to help inch by inch turn Texas blue. Alas, it was not to be.

Big Mike said...

Justice Breyer wrote the following sentence in an article entitled “America’s Courts Can’t Ignore the World” published in the October 2018 issue of The Atlantic:

“Lawyers, legislators, and judges to an ever greater extent must look beyond their own shores to answer questions of local law.”

But now he wants to ignore the recommends of the United Nations and the standard practice of numerous other First World countries because, maybe, the Trump administration will be dumb enough to print the census forms in French?

JAORE said...

"The Secretary shall perform the functions and duties imposed upon him by this title, may issue such rules and regulations as he deems necessary to carry out such functions and duties, and may delegate the performance of such functions and duties and the authority to issue such rules and regulations to such officers and employees of the Department of ..."

Far too many laws include crap like this. If Congress can not write a law at least OUTLINING what is to be done they are incompetent and have ceded power to the Executive (and/or low level minions within). Also Congress, in their much mentioned OVERSIGHT role should be looking at how laws are implemented and, if off the mark, change the law.

Yancey Ward said...

Jim Gust is correct- the real motivation for fighting for and against this question is that we will be able to combine the information of "non-citizen" with "legal-non-citizen" data to give a fairly accurate count of illegal residents. I am guessing the number is in the area of 30 million, and an undercount of even 6.5 million (which I don't believe anyway), would still be more accurate than the numbers constantly parroted by both sides- we would have actual error bars to work with.

MountainMan said...

Danno said: "Like MountainMan and gahrie said or inferred, citizenship questions were on Censuses taken as late as 1950. "

The citizenship question was last asked on the decennial census in 2000. It was not included in 2010 as the decennial census was just a very basic 10 question survey, pretty much just a head count. Since that time the Census Bureau has conducted the American Community Survey, an annual survey of all US communities of a small, statistical sample, to get an estimate of the population and its attributes. This includes very detailed information on housing and also on personal attributes, including citizenship and country of birth. You can read about the ACS here.

Since the Bureau already assesses citizenship annually on a statistical sample there should be absolutely no reason the question cannot be included on the decennial census, especially since it was just done in 2000. No lawsuits were filed then. This whole exercise is just frivolous and political, meant to gum up the works a little more in everything the Trump administration tries to do.

The decennial census is kept confidential for 72 years. Currently, the 1940 census is the latest available. The 1950 census will become available in 2022.

Big Mike said...

Justice Brett M. Kavanaugh also discussed international trends. “The United Nations recommends that countries ask a citizenship question on the census,” he said. “And a number of other countries do it. Spain, Germany, Canada, Australia, Ireland and Mexico ask a citizenship question.”

Maybe Breyer forgot what he wrote for The Atlantic last year, but it appears that Kavanaugh did not.

stlcdr said...

"Blogger Yancey Ward said...
"That's a curious question as the purpose of the census is to maintain an annual street listing of residents for voting purposes."

Well, no- that isn't the only purpose of doing a census. The very fact that they ask other questions that don't relate to voting should be telling you that the information is useful for other purposes- else they wouldn't be asking them- it would be a straight up headcount.

4/24/19, 11:46 AM"

Of course it's useful, because they have made it useful. Having everyone's name, address, SSN, salary, whether they leave their doors unlocked and when: all very useful information. Does not justify asking the questions and gathering the data.

Sebastian said...

@BM: "Justice Breyer wrote the following sentence in an article entitled “America’s Courts Can’t Ignore the World” published in the October 2018 issue of The Atlantic:

“Lawyers, legislators, and judges to an ever greater extent must look beyond their own shores to answer questions of local law.”

But now he wants to ignore the recommends of the United Nations and the standard practice of numerous other First World countries because, maybe, the Trump administration will be dumb enough to print the census forms in French?"

Just a reminder, as if one were needed: all progs make all arguments in bad faith all the time.

Of course, they only want to "look beyond our shores" to shore up their phony policy arguments. It's called cherry picking. Scalia had some scathing things to say about it.

Charles said...

"The straw man fallacy was Obama's favorite. He used it constantly. Biden wouldn't know a straw man if he came up and smacked him in the face."

Yes, but he might nuzzle it.

Greg Q said...

Blogger JAORE said...

Far too many laws include crap like this. If Congress can not write a law at least OUTLINING what is to be done they are incompetent and have ceded power to the Executive (and/or low level minions within). Also Congress, in their much mentioned OVERSIGHT role should be looking at how laws are implemented and, if off the mark, change the law.

Ginsburg actually started the kill shot on that one, talking to the lawyer representing Pelosi:

JUSTICE GINSBURG: Mr. Letter, the -- Congress has the primary control over what the census will be, not the executive, and Congress has been alerted to this citizenship question for some time, and it has done nothing about it.

So one question is who should decide? Congress is silent. Should the Court then step in?

MR. LETTER: It's a very fair question, Your Honor. Two responses:

One, I think that this is a very ironic point for General Francisco to be making. He has said -- he has emphasized in his brief Congress knows about this. Congress should do something. This -- the Court can take judicial notice of this because it's in the public record.

The Secretary of Commerce has been called before Congress to explain what he did here, and Assistant Attorney General Gore, the
one, you know, about the -- the author of the -- the request by the Justice Department has been called to Congress.

They have been declining to answer. They're not giving Congress the information it requests because they say there's litigation
going on.
[Snicker! Burns when that dodge goes the other way! Guess you shouldn't have been so supportive of the DoJ blowing off the GOP House]
...
[Then Roberts, of all people, goes in for the kill]

CHIEF JUSTICE ROBERTS: I thought all the information available, as I understand it, leads to only one answer. And so why isn't
that answer sufficient for them to take whatever action they consider appropriate?

MR. LETTER: The -- I'm sorry, Chief Justice.

CHIEF JUSTICE ROBERTS: Well, we've been told there was no basis for the Secretary to make any decision, other than the
recommendation that was submitted to him by the Bureau, because that's the evidence. That's the scientific evidence. And so there's no room for the exercise of any discretion.

So what information -- what more information does the Congress need to address the problem?

MR. LETTER: We want to know what -- you -- you decided otherwise. Why did you decide? As we know, his -- his -- his letter provides not -- his memo provides not much information. This -- the Justices here today have been asking these key questions.

So we want to know what made you do -- what made you decide this? Was this just a political decision? [Um, he's a political appointee. He gets to make "political decisions"]

[Then Kavanaugh applies the coup de gras]
JUSTICE KAVANAUGH: Well, I thought Justice Ginsburg's question went more to why doesn't Congress prohibit the asking of a
citizenship question in the same way that Congress has explicitly provided that no one can be compelled to provide religious
information?

MR. LETTER: Right. And so that is something that Congress could attempt to do, yes, and that is one of the things that would be -- would be asked about.

But, as we know, that doesn't stop this Court from interpreting the statute and the Constitution.


Translation: It's a political question, and we don't have the political power to force our view, so we want 5 members of teh Supreme Court to impose our view on everyone else

The lower court decisions will be overturned 5-4

Greg Q said...

Blogger stlcdr said...

Of course it's useful, because they have made it useful. Having everyone's name, address, SSN, salary, whether they leave their doors unlocked and when: all very useful information. Does not justify asking the questions and gathering the data.

It's been happening for the entirety of the US Census

So the claim that it's against the law, or a violation of the US Constitution, is pretty much insane.

Is it a good idea? That's a political question. Feel free to pressure candidates about that.

But do not feel free to use the Courts to impose your political beliefs on the rest of us. That;'s what elections are for

Fernandistein said...

Suppose the Secretary puts in a question about sexual orientation. Suppose he puts a question in about arrest record.

People don't have any obligation to answer any questions other than "how many people live here".

Henry said...

The "Who's Your Daddy?" question may just sneak in.

Chuck said...

Ann Althouse said...
It's pretty clear Trump will win this.


What an odd formulation, Althouse. "Trump" isn't a party (the Department of Commerce, Secretary Ross, and Census Bureau Stephen Dillingham are), and Trump hasn't done anything to "win" the case.

I know it is his policy; his issue as it were. We all know that. But Trump hasn't done much to assist the cause. He usually makes these cases harder for his own administration attorneys (and the Solicitor General) to win, with his innumerable clumsy, oafish, stupid, ill-advised comments. As Erin Hustings wrote at SCOTUSblog; "By repeatedly singling out religious, national-origin, gender, and racial and ethnic minorities for exclusion or pointed non-protection, the Trump administration has opened itself to charges of acting with unconstitutional discriminatory intent."

I don't disagree that it seems that there will be five conservatives on the Court who will rule for the Petitioners (Ross, et al), and I will be happy with that result. I will never think of it as a "win" for Trump.

Greg Q said...

Blogger Chuck said...

I don't disagree that it seems that there will be five conservatives on the Court who will rule for the Petitioners (Ross, et al), and I will be happy with that result. I will never think of it as a "win" for Trump.


The only reason why there are 5 "conservatives" on the Supreme Court to rule the right way is because Trump won the 2016 Presidential election.

So, feel free to lie to yourself. But if it goes the way we expect, it will be a Trump win, that happened because because Trump won

Goldenpause said...

If the Supreme Court rules in favor of the Administration will it also admonish lower court activist judges to stop exceeding their authority?

Drago said...

Michael Avenatti Republican Chuck: "I don't disagree that it seems that there will be five conservatives on the Court who will rule for the Petitioners (Ross, et al), and I will be happy with that result."

LOL

(Wink wink)

Sheridan said...

Gotta love Bryer's use of the word "extreme". That's the crux of our current situation embodied in that one word. The liberals on the Court are hell bent on eradicating "extreme" conditions. Ask about citizenship on the Census and potentially expose millions of illegals to legal jeopardy? Extreme! Limit biological gender to only two sexes? Extreme! Please, SCOTUS liberals, give is a playbook so that we know what you will come to view as extreme! White privilege? Vanilla ice cream?

Bruce Hayden said...

This was 40 years ago when I worked there, but we chuckled that we (Census) had the only collection of IRS records that had been fully integrated with W-2s etc. 40 years later and the IRS still doesn’t fully integrate all of its input document flows. No doubt, Census still does. We also had integrated all of the state DMV files, and had added in credit bureau information, welfare records, and several other sources. It was easily the most thorough list of where people probably lived in the country though it tended towards over inclusion, since the goal was to mail everyone their Census form, and then figure out who hadn’t responded and follow up. And, at that time the list of people and addresses was highly confidential, with prison promised for anyone who released it outside Census. But that was highly unlikely since everything was tape based at the time, with reels of tape tightly controlled. That is if you could even figure out which reels of tape had the information you wanted - I couldn’t have and had an office right across the hall from the people who controlled the tapes.

One of my jobs there was to move Census raw data from older media to the newer 6250 BPI reels that we were using. Everything had been replicated, so what my program would do was to mount 2 or 3 (or theoretically more) copies of the old tapes in parallel, then read them all in parallel, block by block, copying the good copy to the new tape. Luckily, for at least the 1960 and 1970 Census data, we had been utilizing a proprietary tape format that included both a checksum and block number, which greatly simplified the job. Block numbers were critical since a hardware read error could indicate 0-N missing blocks. Kinda a fun project. When I left, they had completed the 1970 conversion, and were working on 1960.

My other unique contribution was the software that took raw FOSDIC (the machines that Census had designed and built to read the paper forms) data and deblocked the doubly blocked data into records for use by the programs that performed first pass editing and manipulation on the raw Census data. It was fun because they allowed me to write in assembler, which allowed me to optimize execution. The computers we were using provided for multiple execution streams, a capability that wouldn’t become commonplace for another couple decades. So, my goal was to maintain two or three execution streams at the same time by minimizing register conflicts in the inner loop. My justification for this instruction stacking was that every filled in bubble on every Census form received was run through this code. Unfortunately, I had a small glitch in the code, which wasn’t detected until well into volume processing of the raw Census data, and no one else could understand what I had done with the code. Luckily, despite having left Census by then, I was working one wing over and one floor up in the same building (Suitland FOB 3), so could easily fix it.

Michael said...


@Dave Begley
"Every day RBG is sitting on the bench she must regret not retiring when Obama was President."

What a generous assumption, Dave! My estimate of her regrets: zero.

She may even hold onto a fantasy that only someone just like her will ever sit in her seat. My estimate of that being her fantasy: 50%. Her health made resignation at some point in Obama's term a serious option. She made her choice.

She will never resign that seat.

Clyde said...

tim maguire asked...

2) What are these estimates of lower participation based on? Do they have any validity at all?


If that random 6.5 million number smells like poo, well, it's because they no longer have to pull numbers out of their ass; they can go to San Francisco and pick them up right off the sidewalks.

Henry said...

Unfortunately, I had a small glitch in the code, which wasn’t detected until well into volume processing of the raw Census data, and no one else could understand what I had done with the code.

So THAT'S why everyone in 1980 was Eskimo.

MayBee said...

I will never understand why people think it makes sense to keep guessing (and making policy based on) how many non-citizens and illegal aliens we have living here.

Friedrich Engels' Barber said...

Breyer - You have provided some great arguments there against Government by Bureaucrat. Who could ever have allowed that governing structure to happen...?

hstad said...

This "Citizenship" question garbage is similar to the "Let Felons Vote". WTH, if you give felons the right to vote, what's next, the 'right to carry arms'. Truly amazing how Liberals have become lazy in their thinking. All propoganda 24.7.

Beach Brutus said...

The concern is that inclusion of a citizenship question will cause illegal immigrants to under report on the census, and therefore, their resident state will be under represented in Congress. But if the border were properly secured there would be no significant population of illegal immigrants to under report, and no state would have an interest in an illegal immigrant population windfall for representation purposes. How could inclusion of such a question cause a recognizable harm?

Saint Croix said...

Weird that liberals think it's normal, right, just and cool to ask about race and divide human beings into races…

while they simultaneously think it's outrageous, wrong, unjust and evil to count up Americans in the census.

MayBee said...

It's cool that the people who think it's too invasive to ask about citizenship on the census are trying to push the idea of a wealth tax- where people are going to have to enumerate their assets and finances to the government so they can ascertain our wealth.

Bruce Hayden said...

“It's cool that the people who think it's too invasive to ask about citizenship on the census are trying to push the idea of a wealth tax- where people are going to have to enumerate their assets and finances to the government so they can ascertain our wealth.”

Funny thing there is that their avowed targets, those having a net worth of maybe the Clintons ($100 million) or more tend to have significant parts of their wealth safely hidden outside the country.

viator said...

Dave Begley said...
"Every day RBG is sitting on the bench she must regret not retiring when Obama was President."

I think you underestimate RBG, she intends to outlive us all, including the present court. She will probably live to at least 115 years old and still be sitting in that chair.

Chris Lopes said...

@Chuck
When an issue is brought before the Supreme Court dealing with an administrative policy issue, and the Supremes rule in favor of the administration's side, that's considered a win by the president. In this case the only reason it was challenged in the first place is because Orange the Clown was involved. So if his side wins, he wins. Like it or not.

The Vault Dweller said...

I think you underestimate RBG, she intends to outlive us all, including the present court. She will probably live to at least 115 years old and still be sitting in that chair.

If there was someone who would could do it, my money would be on her.

Original Mike said...

Blogger Chris Lopes said..."@Chuck When an issue is brought before the Supreme Court dealing with an administrative policy issue, and the Supremes rule in favor of the administration's side, that's considered a win by the president. In this case the only reason it was challenged in the first place is because Orange the Clown was involved. So if his side wins, he wins. Like it or not."

Chuck knows this. He's just being a jerk.

Hagar said...

It is not just about congressional representation, but also about general funds distributed to the states on the basis of population.
Now, I think the Federal law still says that non-citizens are not entitled to welfare support, so I think there is a conflict or at least an anomaly here.
But listen to them scream if you tell them they cannot get welfare funds from the Federal Gov't based on a count of "people" they are not allowed to spend the money on.

MayBee said...

Funny thing there is that their avowed targets, those having a net worth of maybe the Clintons ($100 million) or more tend to have significant parts of their wealth safely hidden outside the country.

New census question: Is your wealth a citizen of this country?

Bruce Hayden said...

“When an issue is brought before the Supreme Court dealing with an administrative policy issue, and the Supremes rule in favor of the administration's side, that's considered a win by the president. In this case the only reason it was challenged in the first place is because Orange the Clown was involved. So if his side wins, he wins. Like it or not.”

I think that it is deeper than that - either having to do with reapportionment or the Illegal Alien crisis we are facing. As for reapportionment, if they are right, that asking that question will result in a significant number of illegals not responding they will be uncounted for reapportionment, and since the concentration of illegals around the country is far from uniform, that means that states with large illegal populations will suffer in relation to those that don’t. Moreover, a lot of federal money comes to the states and localities based on these counts. I remember 30-40 years ago when Patsy Schroeder, representing Denver, tried to get Census to use sampling instead of enumeration. Turns out there was a population floor for city or county (which are the same for Denver) of 500k. Otherwise, the money is controlled by the state, and the enumerated population of the City and County of Denver had dipped below the magic 500k line, for the first time in my lifetime. She, and the Democrats, lost, and a decade or so later the Denver population had rebounded. The point is that enumeration is hard to cheat on, while sampling is fairly easy - we see it in a lot of the political polling we see.

Achilles said...

"Suppose the Secretary puts in a question about sexual orientation. Suppose he puts a question in about arrest record. Suppose he says, I'm going to have the whole survey in French...
We have no role to play no matter how extreme?" Justice Breyer questioned the Solicitor General, who was defending the decision to put a question about citizenship on the 2020 census.

Justice Breyer is a piece of shit who is merely out to destroy our constitution and undermine the rule of law.

There is no word in the constitution or law as written that gives him even a small amount of authority in this case.

The lower court judges who made up obvious lies and were completely unlawful in their actions should be impeached or those lower federal courts should just be eliminated completely.

dbp said...

"...defer to expert statisticians in the Census Bureau who opposed adding the question..."

Their expertise is in statistics and the judgement that is being asked for is not statistical. There is a trade-of between fewer people filling out the survey and getting useful data on citizenship, the statisticians may be able to provide some numerical flesh to the trade off.

It is up to policy makers to determine which side of the trade off is optimal.

iowan2 said...

The only sensible response is provided up thread, with the quotes from today's oral argument.
RBG, asked if this contentious point about asking if you are a citizen is a political, not judicial decision. Just like legislation that prohibits asking about religion, more legislation could be passed to prohibit asking about citizenship.

I will not place a bet that RBG will follow her own advice.

A SCOTUS ruling allowing the administration to do as they wish, is a yuuge win for President Trump. President Trump.(that's fun to type!)

Big Mike said...

Every day RBG is sitting on the bench she must regret not retiring when Obama was President.

As deep in the DC bubble as she is, Ruth Ginsberg probably imagines that there will be a socialist in the White House come January 2021. I think she’s wrong.

rehajm said...

In case nobody mentioned unthread, shouldn't there be a presentation of evidence that it will suppress participation rather than the supposition it could? If not there's an infinite number of scenarios we could garner.

MAJMike said...

So what happens if the respondents lie about their citizenship status?

rcocean said...

The law treats citizens and non-citizens differently. EVERY country in the world does.
Accordingly, citizenship is a LEGAL matter.

Look, we know all how this will turn out. The 4 liberals will vote against putting citizenship on the Census because that's what the Democrats want. Every vote they make can be predicted in advance. The Constitution be damned.

How the 5 Republican judges will vote is always up for grabs because they actually have Goddamn Constitutional principles.

Anonymous said...

Is this whole Census question an argument that liberals are making that citizens are not to be distinguished from non-citizens in our Census representation?

Sorry but there is a difference, and it is one that matters in American society. The Court should strike a blow for unity, and answer resoundingly that such a Census question is not only legally permitted, but necessary as we move to a more data-driven and metrics-based society.

More questions, not less.
They matter. It's not about "racism". Duh!

I hope the "minority" members on the Court are wise enough to understand the importance of a unanimous decision here, so the pundits and legal no-nothings don't use the decision as firestarter...

Law clerks: are you paying attention to the undercurrents in today's American society(-ies)???

Douglas said...

This is an easy case. Congress could specify what questions should be on the Census. It hasn't done that, but has left it to the Executive Branch to decide. That decision can only be removed for abuse of discretion, that is, it can be overruled only if the decision to include a particular question is irrational. Of all the examples give, the only one that falls the irrationality test would be the determination to use French instead of English for the Census. Everything else would be OK, including the decision to ask about citizenship. Of course, the lower courts are in the process of fashioning a whole new body of law for reviewing discretionary decisions by the Trump administration, and no one else. I suspect that the Court will correct that.

Gospace said...

My wide and I have been married since 1978. One way or another, 1980 would be the first census I would have filled out. Talked with hr about it. 1980 we lived in CA- didn't fill out a census form. 1990 we lived in VA. Didn't fill out a census form. 2000 and 2010 lived right here in CNY. Still haven't received or filled out a census form.

So for the 4 censuses of my adult life- I haven't been counted. Which means my wife wasn't counted. Nor my children. But I'm sure all the experts at the census bureau are absolutely correct that the census is accurate, and the citizenship question will make it less so.

Or maybe not.

I've looked at the records from the past. Someone actually went door to door collecting information. It was all written down. Maybe we ought go back to door to door data collection.

Douglas said...

*only be reviewed

Mark said...

I remember being rather annoyed and displeased at the government in past censuses asking all sorts of nosy, none-of-their-damn-business questions. But I didn't protest that the government could not ask the questions.

The government can ask whatever it damn well pleases. And if you don't like it, then don't answer the question. Tell them how many people live in your household and leave it at that.

Objections to questions are not themselves grounds to disallow the question. Just don't answer. There is your lawful remedy.

HoodlumDoodlum said...

Rational basis, baby!

Bruce Hayden said...

I had been of the opinion that the APA claim was sufficient to kill the question on the Census form. But then I read an article on NRO by David French that brought up this point:

2. Congress passes a law that grants an enormous amount of discretion to the Secretary of Commerce. Here’s the key, operative provision (13 USC §141):

The Secretary shall, in the year 1980 and every 10 years thereafter, take a decennial census of population as of the first day of April of such year, which date shall be known as the “decennial census date”, in such form and content as he may determine, including the use of sampling procedures and special surveys. In connection with any such census, the Secretary is authorized to obtain such other census information as necessary. [Emphasis added.]


The point is that the Secretary (of Commerce) was granted significant discretion by Congress on what is to be on Census forms, and is here utilizing it. The Administrative Procedures Act (of 1946) predates this statute by roughly 14 years. If Congress wanted to make this statute subject to the APA they knew how to do it. They didn’t. That arguably means that the Secretary’s discretion here is not subject to the APA, and, thus, this use of discretion is fully authorized by statute.

Keep in mind that this same APA argument was made against certain portions of the PPACA, that had not undergone formal Notice and Comment, with hopefully similar results.

Bruce Hayden said...

In the French article, several of the commenters posited Census questions that might give away, for example, sexual orientation of individuals. This is essentially a moot question, because Census cannot, by law, release any statistical data that identifies individuals. Thus, for example, if Census asks about income and one person on the block makes a lot more money than anyone else on the block, Census cannot release enough block level information that that individual or his income can be identified. This requirement rolls up to higher and higher reporting levels, until it can be disclosed without identifying individuals. This also means that subtracting, say, block level results from higher level results for the rest of the blocks in the higher level to calculate the missing block level results, and, thus, individual characteristics. This is one of the most complex things that is done in the generation of Census results for the public. This is a big part of why the Decennial Census Division borrowed statisticians from the Population Division down the hall, when I was working on the 1980 Census.

Mark said...

In a sane judicial world, not only would this case be decided 9-0 in favor of the Census Bureau, the people who brought the suit would be hit with sanctions for bringing a frivolous claim.

wildswan said...

A lot of the questions are on the form simply because they are interesting to social scientists. Anything you put down is available to graduate students in the social sciences for any purpose they can persuade their department chairman is significant. (Email - private. (actually the government has a program to allow groups to access everyone's email if a health justification is offered.) IRS - private, nonpolitical. (Lois Lerner). Census - private (Research Data Centers give access to social scientists). If it's digital it's exposed. And the government's Massive Data projects are linking it. Buy books. Thanks to induced illiteracy you will disappear if you read offline.

Narayanan said...

Are States prohibited from doing own Census?

Or Just no point to it?

Did they do so pre 1776?

The Vault Dweller said...

Are States prohibited from doing own Census?

The census is one of the few things the US federal government is required to do under the constitution. I don't know if there has ever been litigation around the state's doing a census on their own, but I doubt it could replace the federal government's obligation to do it. Because it again is one of those rare, "Shall do" things rather than "May do" things in the constitution.

Bruce Hayden said...

“The census is one of the few things the US federal government is required to do under the constitution.”

As a conservative even back in my 20s, that is one of the reasons I took a job with the Decennial Census Division of the Census Bureau back in the mid 1970s.

walter said...

Well..if so many want to call them "undocumented", document 'em.

Narayanan said...

....***This "Citizenship" question garbage is similar to the "Let Felons Vote"....***

Wouldn't that mean prison authority can ask if felon is citizen?
Or does it lead to become felon, gain voting right.

Rabel said...

I was reading through the comments to the Times article and was amazed at how many highly rated and "Times Picks" comments mistakenly understand the issue and believe that the inclusion of the question somehow means that non-citizens won't be counted in the census at all.

It may be from this sentence by Liptak:

"By one government estimate, about 6.5 million people might not be counted if the citizenship question is allowed."

The left in this country has lost it's way, if it ever had one. At least they used to be able to read.

Also, Breyer is slipping. He may be the next to go barring Sudden Justice Death Syndrome.

Narayanan said...

Thanks - The Vault Dweller.

To build my point, if State can order own census and citizen question was included what objections may be raised?

Why not RED States do it as electoral disinfectant? Prophylaxis!

MountainMan said...

"Are States prohibited from doing own Census?"

No. California's original constitution of 1849 required a state census to be taken on a regular basis. From Ancestry.com:

"California’s 1849 state constitution dictated that a census be taken in 1852, in 1855, and every 10 years after that. The 1852 census was the only one taken, but it proved to be an important count.

The gold rush would bring about 300,000 people to California between 1848 and 1854. The 1850 U.S. Federal Census tallied California’s population at 92,597. The 1852 California state census count came in at 260,949 (neither census would include the entire Native American population). Not only did the 1852 census provide a record of an additional 150,000 people, but records from three counties from the 1850 census - Contra Costa, San Francisco, and Santa Clara - have since been lost or destroyed. In addition, the accuracy of the 1850 census was called into some question because of the rapid growth and mobility of the population at the time as miners poured into the state."

The only reason I know about this is my gg-grandfather in GA was missing in the 1850 census and via Ancestry my wife found him, with some other GA men, listed in the 1852 CA census as an 18-year old miner in El Dorado county. But he must have struck out there and, surprisingly, returned to GA as he appears again in the 1860 US census there with a wife and 3 children. Unfortunately, he enlisted in the 41st GA Infantry in early 1862 and died from measles in MS after just 8 weeks of service. He probably should have stayed in CA.

I don't do much research outside of GA and SC but I would not be surprised if other states have taken periodic censuses of their own. An interesting research topic.

Deep Runner said...

I don't know, man. John Roberts is a wild card. He seems to be pinned eternally to the notion that the Court not appear partisan in any way, which, strictly speaking, is...good, I guess. But with a known liberal bloc and a known conservative bloc, his is the swing vote. Some believe he cares more about how the Court is perceived rather than how laws should be interpreted.

Gospace said...

Narayanan said...
Are States prohibited from doing own Census?


Many states have done censuses on their own, usually in years ending in 5. I've picked up a lot of genealogy information off state censuses from NY and other states.

There is nothing to prevent a state from gathering it's own census data. If they're going to do so, it makes sense for them to do their census between federal censuses.

Luke Lea said...

So "expert statisticians in the Census Bureau" are to be our final arbiters!

Paul Mac said...

Media has already clearly communicated to refuse to answer questions or lie.

https://www.nbcnews.com/politics/white-house/are-you-citizen-here-s-what-happens-if-you-lie-n861841

"Ultimately, the refusal to answer census questions is a federal crime, but not really."


"Refusing to answer the census or lying on it will likely remain in that second category — a crime, but not really."

Danny Cevallos is an MSNBC legal analyst. @CevallosLaw on Twitter.

I'd think there would be an ethics issue for a lawyer making such statements publicly. But what do I know?

Tina Trent said...

We already offer the census in what, six languages? In 2020 that will be expanded to a dozen or more. This is in line with most federal government services. Many offer forty or more languages via phone translators 24/7.

Has been for decades. I used to lug around STD pamphlets in a dozen languages while "home visiting" immigrant kids turning tricks in Atlanta.

So Breyer's partisan nastiness blows up in his face.

What the census doesn't do is hire Americans who want jobs if they don't speak cretain languages. They also don't tell the applicants they must speak the languages before subjecting them to an hours-long diversity diatribe and test.

This happened to me in Florida in 2008-9. I watched a room full of earnest people sweating for work sit through the offensive, accusatory "diversity enforcement" hectoring, then take the test, and ONLY then be told we had all scored perfectly or close to it, but while they would "love" to hire us all, they were only hiring Spanish speakers.

"Why the hell didn't you tell us that in the first place? " one aggrieved guy asked. Reasonably. "Hush," his wife said.

The census worker, the usual drop-waist dress Peace Corps type, looked like she was going to cry. But she sure got into that diversity lecture. And somebody made the decision that we wouldn't be told until we had cleared the Potempkin Village. that

Thus: screw Breyer.

stlcdr said...

If states do their own census, and the results are different from the Federal census...

Also, if Red states do it properly, and include the citizenship question, Blue states exclude the citizenship question and encourage the non-citizens and illegals to respond (and be included) doesn't that work against the Red states (results in fewer representatives).

Seems like promoting the exclusion of the question is encouraging cheating.

(surprise, surprise).


Greg Q said...

It would be delightful if, after the Census forms are all printed with the Citizenship question, the Census Bureau unveils its advertising, all of which makes a big deal that it's a crime to lie on the form.

I don't know: is lying on the form a big enough crime to affect your immigration status? If so, that should definitely be pointed out