When the Supreme Court sits for oral argument on April 23 in Department of Commerce v. New York, the Justices will have the benefit of three dozen amicus (or friend-of-the-court) briefs that have been filed in support of the plaintiffs challenging Commerce Secretary Wilbur Ross’s decision to add a citizenship question to the 2020 Census.
The briefs combine to advance several key themes. Here are the highlights.
Getting the Census Right Is a Bipartisan Concern
The briefs show a strong opposition to the citizenship question that transcends partisan divisions and political administrations. Three briefs are particularly noteworthy in this regard.
First, five former directors of the Census Bureau who served under Republican and Democratic administrations emphasize, among other things, the importance of a head count untainted by political bias—or even the appearance of bias. As they explain, the Census Bureau has rejected for decades any efforts to ask everyone in the country about their citizenship question for fear that “the census would be characterized, and perceived, as a political exercise rather than an important part of our civic life carried out by a nonpartisan scientific agency staffed almost entirely by career civil servants.”
Next, federal civil rights officials who served in every presidential administration from Reagan through Obama also challenge the Trump administration’s claims that citizenship data collected from the decennial census would help enforce the Voting Rights Act. These six former heads of the Civil Rights Division of the Department of Justice assert that the citizenship question is “a purported effort to address a theoretical problem that has not been realized in practice,” and that the question will impose “a significant new obstacle to voting rights litigation” because the undercount it will produce will dilute the voting power of the communities that the Act is meant to protect.
Finally, a group of 190 bipartisan elected officials from both red and blue states catalog the harms that the question will inflict on states and individuals across the nation, with adverse effects on everything from political representation and healthcare, to education and crime prevention. The elected officials’ brief makes clear that the citizenship question’s harms don’t acknowledge a red state/blue state divide.
The Court’s Decision Could Have Significant Implications for Agency Action
The briefs also highlight the case’s potentially substantial implications for administrative law and judicial oversight of the decisions federal agencies make.
The Commerce Department has repeatedly argued that courts cannot review the commerce secretary’s decisions regarding the census. But administrative and constitutional law scholars explain that the Commerce Department’s decision was the result of such “arbitrary and capricious decisionmaking” and was so reliant on reasons that “collapse on even cursory inspection” that the judiciary must step in. If the Court fails to do so, it would be endorsing “a remarkable claim: that even if the secretary fails to properly notify Congress of changes to the census, no court can hear any case challenging his decisions regarding one of the most fundamental instruments of political representation and funding allocation in our constitutional order.”
Former federal district court judges appointed by both Republican and Democratic presidents urge the Court to uphold the district court’s decision striking down the question under the Administrative Procedure Act. Their brief argues that deference to trial courts’ factual findings is critical to the proper functioning of the federal judiciary and its legitimacy in the eyes of the public.
These briefs reinforce the notion that if the Court allows Secretary Ross’s decision to stand, it would substantially weaken the judiciary’s abilities to monitor agency decision-making in many contexts, under any presidential administration. That would essentially allow agencies to make decisions without providing the kind of transparent, reasoned bases for their actions that our democratic system of government demands.
The Commerce Department Relies on an Inaccurate Historical Narrative
The amicus briefs also push back strongly against one of the Trump administration’s primary justifications for adding the question: history. The administration has repeatedly argued that the census has a long tradition of asking about citizenship, and that Secretary Ross is therefore merely “reinstating” the question. The former Census Bureau directors, however, contend that Secretary Ross’s proposal “is, in fact, a significant change that deviates from the Census Bureau’s longstanding practice.” Echoing this theme, leading census historians note in their brief that the Census Bureau has never asked for the citizenship status of everyone in the United States. Moreover, the historians argue, statistical practice has changed so drastically over the last several decades that censuses from the 19th and early-20th centuries cannot and should not serve as models for the contemporary census.
The Experts Agree: This Isn’t How to Conduct an Accurate Census
The briefs also assert that Secretary Ross’s process for adding the citizenship question—without testing or subjecting the question to other procedural safeguards—deviated from the accepted norms for creating effective, accurate surveys.
Leading statistical organizations argue that the Commerce Department’s “last-minute addition of a citizenship question was inconsistent with Census Bureau standards and unnecessarily threatens the integrity of census data.” As their brief explains, the Census Bureau is subject to federal standards meant to insure data quality and utility—for example, pretesting, identifying problems, and refining a proposed question prior to implementing it. The Bureau’s standards are consistent with professional statistical standards—yet Secretary Ross followed none of them when he added the question.
The former Census Bureau directors, moreover, argue that maximizing voluntary participation in the census is vital to achieving accurate results. And “[t]hat is why the Census Bureau employs an extensive multi-year testing process to assess the effects of possible changes to questionnaires —particularly with respect to the questionnaire that is sent to every household in the United States.”
A Citizenship Question Would Harm Every Sector of American Society
Together, the briefs contend that many aspects of American life would be harmed if the question were to appear on the 2020 Census.
Many amici emphasize the extent to which individuals and communities will suffer from an undercount. Minority and low-income communities in particular stand to lose political representation and funding for their schools, housing, infrastructure, and healthcare, among other critical needs, if the question goes forward.
A group of businesses and the Nielsen Company explain how corporations rely on census data to determine consumer needs and make business decisions. As Nielsen’s brief puts it, an undercount of minority communities would “harm American businesses who will miss out on the opportunity to sell products and content to an ever-increasing portion of the U.S. population. This mismatch between a community that wants to be served and corporations that want to serve it will cost American businesses billions of dollars in lost revenues.”
Counties and local governments remark that an undercount would render them ill-equipped to plan for things like natural disasters and public-health emergencies. And these difficulties would only compound the problems caused by reduced funding for the vital services they provide like nutrition and child-abuse prevention programs.
Nonprofits that provide essential social services note that the question would lead to a severe reduction in their funding, much of which comes from the federal government. And the philanthropic community contends that it will not be able to make up for those funding gaps.
Together, the briefs paint a powerful picture of just how deeply the adverse effects of a citizenship question would cut.