The Department of Commerce initially planned to include the question on the census, but their plans were challenged in court.
Last month in Department of Commerce v. New York, the Supreme Court remanded the department’s decision.
The ruling effectively told the administration that if they wanted to reinstate the question, they would need to provide better reasoning for the inclusion. Commerce had argued that the additional data would help the enforcement of the Voting Rights Act, but purportedly argued their case poorly.
Chief Justice John Roberts, who gave the pivotal vote in the 5-4 decision, wrote the opinion of the Court.
“We do not hold that the agency decision here was substantively invalid. But agencies must pursue their goals reasonably,” wrote Roberts, adding, “Reasoned decision making under the Administrative Procedure Act calls for an explanation for agency action. What was provided here was more of a distraction.”
Some legal experts argued that the Supreme Court left plenty of room for President Trump to find another constitutional way to add the question to the census.
David Rivkin, a conservative attorney who served in the Reagan and Bush Sr. administrations, told The Texan on Wednesday that the President could add the question in a manner consistent with the Court’s ruling.
“If the President proceeds on executive order,” Rivkin said, “none of the procedural issues that have impacted the first rulemaking would be relevant.”
Since the President is not an agency, he would not be subject to the Administrative Procedure Act.
Rivkin had earlier published an op-ed in The Wall Street Journal arguing that the President should issue an executive order to add the question by citing Section 2 of the 14th Amendment.
Several conservative members of the Texas congressional delegation also spoke out on the issue in a similar fashion.
Rep. Chip Roy (R-TX-21), along with Reps. Louie Gohmert (R-TX-1), Michael Cloud (R-TX-27), and 16 other congressional Republicans, sent a letter to Attorney General William Barr urging the administration to issue an executive order to include the question on the census.
The letter stated that there were many reasons why the question should be included, “from determining appropriations levels for states and localities and having data for states to make decisions on ballot box placement, to collection of data for purposes of understanding the impact of immigration (legal and illegal) on communities, as well as obviously impacting apportionment and re-districting.”
Critics of the letter argue that including the question on the census would be bad for Texas, saying that it would lead to an undercount in communities with a high concentration of illegal immigrants and thereby lead to a decrease in federal funding.
Despite calls on the right to include the question, President Trump decided to take an alternative route to compile citizenship data.
On Thursday, he issued an executive order commanding other agencies in his administration to cooperate with the Department of Commerce in accessing information about the number of citizens and non-citizens residing in the United States.
President Trump expressed disagreement with the outcome of Department of Commerce v. New York in his statement.
“The Court’s ruling, however,” the President said in the order, “has now made it impossible, as a practical matter, to include a citizenship question on the 2020 decennial census questionnaire.”
Utilizing administrative records from other departments was a plan previously considered by the department.
Chief Justice Roberts said in his opinion that the Census Bureau had recommended this option. While Secretary Wilbur Ross thought it was a “potentially appealing solution,” he “concluded that administrative records alone were inadequate because they were missing for more than 10% of the population.”
According to the Associated Press, President Trump told reporters this morning that his plan was not a retreat from his administration’s goal to determine the citizenship count by adding the question to the census.
Below is a copy of the congressional letter sent to Attorney General Barr.
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Daniel Friend is a reporter for The Texan. He participated in a Great Books program at Azusa Pacific University and graduated in 2019 with a degree in Political Science. He has studied C.S. Lewis’s science fiction trilogy and in his spare time you might find him writing his own novel partly inspired by the series.