New York, et al. vs. U.S. Department of Commerce, et al.
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. The State of New York, along with nineteen other states, thirteen cities, and the United States Conference of Mayors, sued the Department 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 New York and its co-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 rejected the Defendants’ request to dismiss the lawsuit, refusing to hold that Secretary Ross’s decision to add a citizenship question was insulated from judicial review. On the question of whether the addition of a citizenship question violates the Enumeration Clause of the Constitution, the court found that a citizenship question is a “permissible . . . exercise of the broad power granted to Congress . . . in the Enumeration Clause,” stressing that the federal government has long gathered demographic data as a part of the Census.
While the court ruled that Secretary Ross has the authority under the Enumeration Clause to include a citizenship question, the court permitted two challenges to Secretary Ross’s decision to go forward: (1) plaintiffs’ claim that his decision to add a citizenship question was arbitrary and capricious in violation of the Administrative Procedure Act, and (2) plaintiffs’ claim that the citizenship question was motivated by discriminatory animus in violation of the equal protection guarantee contained in the Due Process Clause of the Fifth Amendment.
A pretrial conference is scheduled for September 14, 2018.
June 15, 2018
CAC files amicus briefS.D.N.Y. Amicus Brief
July 3, 2018
The district court hears oral argument
July 26, 2018
The district court rejects the Defendants’ request to dismiss the lawsuit
September 14, 2018
Both parties meet for a pretrial conference