Census Citizenship Question

December 28, 2018

The Commerce Department directed the Census Bureau to add a citizenship question to the 2020 Census, ostensibly to improve enforcement of the Voting Rights Act. In Department of Commerce v. New York (2019), the Supreme Court ruled 5-4 that while the Commerce Secretary had the legal authority to add such a question, the Voting Rights Act rationale was "pretextual"—a contrived justification that violated the Administrative Procedure Act's requirement of reasoned decision-making. The decision was remarkable for the Court finding that a Cabinet secretary had lied about the reason for a policy. The case raised due process concerns about arbitrary government action, equal protection concerns about disproportionate impact on minority communities who would be deterred from responding, and Enumeration Clause concerns about whether the question would undermine the constitutional mandate for an "actual enumeration" of all persons.