Georgetown Law’s ICAP files amicus brief on behalf of House of Representatives arguing against Census citizenship question

February 11, 2019

WASHINGTONThe 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 U.S. Supreme Court in the case of Department of Commerce v. New York.  The case concerns the legality of the Trump administration’s attempt to add a citizenship question to the 2020 Census.

“The Department of Commerce’s efforts to add a citizenship question to the 2020 Census would, if allowed to succeed, thwart the constitutionally mandated goal of the decennial census: determining 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 a federal judge in New York correctly found, these efforts are flatly illegal and impede Congress’s direction for conducting the census.”

The amicus brief filed today makes three key arguments:

  1. Congress has a constitutional duty to carry out what the Constitution calls “an actual enumeration” of the whole number of persons in each state.
  2. The Department of Commerce’s proposed citizenship question would obstruct the fulfillment of the actual enumeration required by the Constitution.
  3. Should the Supreme Court choose to hear this case, expedited review is necessary to provide clarity and finality before the 2020 Census forms must go to print in June in order to ensure a timely decennial census.

Read the full brief here.

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 statutory and constitutional law.  Last month, 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 statute from which it derives its authority over the census and (2) to provide a reasoned explanation for why the question was necessary.