On March 26, 2018—many years into preparation and testing for the 2020 Census—the Secretary of the U.S. Department of Commerce ordered the Census Bureau to add a citizenship question to the Census, turning a blind eye to the overwhelming evidence that this question will deter participation by immigrants across the country, who do not want an official record of their immigration status and fear that their responses will be used by the government to harm them and their families. The Secretary also announced that the government would use administrative records to double-check the accuracy of responses to the citizenship question. In two separate cases, a number of plaintiffs sued the Secretary of Commerce in federal district court for violating the Constitution’s Census Clause, which requires an “actual Enumeration” of all persons in this country.

CAC filed a friend-of-the-court brief on behalf of current members of Congress and bipartisan former members of Congress in support of the plaintiffs. In our brief, we explain that the Constitution requires the federal government to count all people living in the United States, whether they are citizens or noncitizens, whether they were born in the United States or in a distant part of the world.  The total-population standard—chosen by our Constitution’s Framers more than two centuries ago and reaffirmed in the Fourteenth Amendment following a bloody civil war—was considered crucial to ensuring equal representation.  We then explain that Congress’s power to determine the “manner” of conducting the Census does not permit an end run around the requirement to count all persons, citizens and noncitizens alike.  Curbing manipulation of the Census by the political branches was one of the main reasons for including the Census Clause in the Constitution.  Last, we explain that a citizenship question does not serve any Census-related purpose, and that the Trump administration’s claim that it helps to enforce the Voting Rights Act is false.  Since the passage of the Voting Rights Act in 1965, the Census has never asked all persons to report their citizenship status.  This is a specious justification for undercutting what the Constitution mandates: a count of all the people, regardless of their citizenship status.

The district court denied the defendants’ motion to dismiss in its entirety, concluding that the plaintiffs have standing to challenge Secretary Ross’ decision to include a citizenship question on the 2020 census and that the plaintiffs have stated claims for relief under the Enumeration Clause and the Administrative Procedure Act (APA).

In March 2019, the district court held that the addition of the citizenship question violated the Census Act, the Administrative Procedure Act, as well as the Constitution’s Enumeration Clause, and enjoined its use. The court wrote that “the inclusion of the citizenship question on the 2020 Census threatens the very foundation of our democratic system—and does so based on a self-defeating rationale.”  The court concluded that “Secretary Ross’s reliance on VRA enforcement was mere pretext and the definition of an arbitrary and capricious governmental act.” Importantly, the court also held the citizenship question unconstitutional because “its inclusion will materially harm the accuracy of the census without advancing any legitimate governmental interest.”

The Supreme Court took up this issue in April 2019 in New York v. Department of Commerce. In June, the Court held that the decision to add a citizenship question to the census was pretextual, and the Administration subsequently announced that it would print the forms for the 2020 Census without a citizenship question.