Georgetown Law’s ICAP files amicus brief for House of Representatives arguing against Census citizenship question
April 1, 2019
Supreme Court to hear Census citizenship case on April 23.
WASHINGTON – The Institute for Constitutional Advocacy and Protection (ICAP) at Georgetown Law, writing on behalf of the U.S. House of Representatives, today filed an amicus brief at the Supreme Court of the United States in the case of Department of Commerce v. New York. The case involves a legal challenge to the Trump administration’s attempt to add a citizenship question to the 2020 Census and will be heard by the Supreme Court later this month.
“The Department of Commerce’s efforts to add a citizenship question to the 2020 Census would, if allowed, thwart the constitutionally mandated goal of the decennial census: conducting an actual and accurate count of everyone present in the United States,” said Joshua Geltzer, ICAP’s executive director and a visiting professor at Georgetown Law. “As federal judges in both New York and California have correctly found, these efforts are flatly illegal and impede Congress’s direction, set out in federal law, for conducting the census.”
The amicus brief filed today by ICAP makes three key arguments:
Congress has not delegated to the Department of Commerce unreviewable discretion in determining what questions to ask on the decennial census questionnaire. It has instead provided clear direction to the Department, which the Department disregarded in its attempt to add a citizenship question.
Because adding a citizenship question would reduce the accuracy of the 2020 decennial census—by the Commerce Department’s own calculations—while serving no legitimate government objective, the Department violated the Enumeration Clause of the U.S. Constitution in attempting to add the question.
The Department of Commerce also violated two provisions of the Census Act by adding a citizenship question to the 2020 census. First, it violated the Act’s requirement that, when collecting data for purposes other than an actual Enumeration of the whole population, the Department must use administrative records wherever possible, rather than direct questions on the decennial census. Second, it failed to provide Congress with advance notice of all subjects it intends to include on the decennial census, as required by the Census Act.
Background on Department of Commerce v. New York
In March 2018, the Department of Commerce announced that it intended to add a question about citizenship status to the 2020 decennial census. Shortly after that announcement, the plaintiffs in the two consolidated actions at issue here—a coalition of states, the District of Columbia, cities, and counties, and a group of nongovernmental organizations—sued, alleging that the Commerce Department’s decision violated federal constitutional and statutory law.
In January 2019, the United States District Court for the Southern District of New York held that the Commerce Department’s addition of the citizenship question was unlawful and ordered that the question not be added to the 2020 census questionnaire. In particular, the district court concluded that the Department of Commerce failed (1) to adhere to the Census Act, which gives the Department the authority to conduct the census, and (2) to provide a reasoned explanation for its decision to add the citizenship question. In March 2019, the United States District Court for the Northern District of California reached the same conclusion as the Southern District of New York as to these violations and also held that the addition of the citizenship question violates the Constitution’s Enumeration Clause. The case is scheduled to be argued before the Supreme Court on April 23, 2019.