Will the census have a citizenship question? Maybe, says SCotUS

[rjmacs]

In a weirdly divided opinion (I'll leave it to you to discern the details), Chief Justice Roberts today announced that:

• the census CAN have a citizenship question on it, in theory
  
• the decision to add such a question is reviewable by the Court
  
• in this case, the Commerce Secretary's reasoning was not sufficient to justify the question
  
• WIlbur will get another shot at explaining himself to the lower court, and might win after all
  

A lot depends on two things:

1. Is Commerce prepared to offer a reasonable justification under the Administrative Procedure Act in a timely fashion?
   
2. Will another challenge to the question - not based on the APA, but on an equal protection claim - derail or terminally delay the question in the interim (in this case, MD's challenge based on the dead GOP consultant's emails)?
   

[deckeda]

WIlbur will get another shot at explaining himself to the lower court, and might win after all

Good luck with that, given what we now know was the reason (as opposed to the initially proposed excuse re: Voting Act)

the census CAN have a citizenship question on it, in theory

Which "theory" would that be? Does the constitution specifically mention including citizenship questions, because Roberts suddenly seems all about whatever's in the ancient text.

[rjmacs]

deckeda wrote:
WIlbur will get another shot at explaining himself to the lower court, and might win after all

Good luck with that, given what we now know was the reason (as opposed to the initially proposed excuse re: Voting Act)

It's a challenge for Commerce's lawyers, but the justices have effectively lowered the bar here.

An ugly detail here is that the Court also found that the lower court should not have ordered Commerce to reveal its decisionmaking records in discovery, but should only have asked Commerce to provide an addendum to its filings giving more detail. Only because the parties agreed to the inclusion of additional evidence in the record did the Court even review the materials that revealed faulty reasoning. This gives the administration vast freedom to conceal elements of its decisionmaking, and present only what it deems its most compelling reasoning in court.

If this ruling had protected Commerce from revealing its faulty reasoning in this case (a counterfactual circumstance), the Court would have had no basis on which to deem their reasoning inadequate/capricious, and the citizenship question would have been deemed appropriate for the census. In other words, this case was a one-off. The challenger won't get nearly so much ammunition for making its case next time...

deckeda wrote:
the census CAN have a citizenship question on it, in theory

Which "theory" would that be? Does the constitution specifically mention including citizenship questions, because Roberts suddenly seems all about whatever's in the ancient text.

No - but because the Constitution nowhere prohibits the question from being asked, there is no Constitutional justification to exclude it. That discretion is left to the executive branch, which must only follow the law and its regulations in deciding what to ask.

[deckeda]

Sure, but the presumed position the Court was likely to take was that yes, this was Wilbur Ross' decision to make. He is authorized. Simple as that.

That was before the hard disk was uncovered that included the email saying let's-do-this-to-literally-hurt-brown-people.

I submit that the knowledge of the email influenced the Court (as was the hope) but of course, since the time for evidence etc already passed could not Officially Recognize It.

[rjmacs]

deckeda wrote:
Sure, but the presumed position the Court was likely to take was that yes, this was Wilbur Ross' decision to make. He is authorized. Simple as that.

That was before the hard disk was uncovered that included the email saying let's-do-this-to-literally-hurt-brown-people.

I submit that the knowledge of the email influenced the Court (as was the hope) but of course, since the time for evidence etc already passed could not Officially Recognize It.

There are lots of legal reasons that doesn't make any sense. The key one is: the challenge resulting from the GOP consultant emails is still active and the outcome will affect whether the census will have a citizenship question, because it's based on a different legal principle than the New York challenge. The legal reasoning in that case is entirely different than this one.

I guess anyone can speculate without evidence whatever they like, but I'm not sure your surmising jibes with the votes and the opinions in this case.

Edit: the "presumed position" that you described above is exactly the position taken in concurring opinions by the Court's most conservative members. They don't think that the case should have been reviewed in its substance, because they think the administration's only binding obligations are procedural.

[btfc]

' “I have asked the lawyers if they can delay the Census, no matter how long, until the United States Supreme Court is given additional information from which it can make a final and decisive decision on this very critical matter,” Trump wrote on Twitter. '


https://www.reuters.com/article/us-usa-c...SKCN1TS1BL

[Lemon Drop]

btfc wrote:
' “I have asked the lawyers if they can delay the Census, no matter how long, until the United States Supreme Court is given additional information from which it can make a final and decisive decision on this very critical matter,” Trump wrote on Twitter. '


https://www.reuters.com/article/us-usa-c...SKCN1TS1BL

No. They can't.

[deckeda]

“I have asked the lawyers if they can delay the Census, no matter how long, until the United States Supreme Court is given additional information from which it can make a final and decisive decision [in Republican’s favor] on this very critical matter,” Trump [basically] wrote on Twitter.

[SteveG]

I would like to once again thank George H W Bush for Clarence Thomas