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It's extremely likely that the citizenship question will appear on the 2020 census -- as intended.
I fear @JoshuaMatz8 is right: the “victory” for excluding the citizenship question from the 2020 census may well be short-lived, and the praise for how CJ Roberts managed the case seems premature. Read this razor-sharp dissection of the Chief’s gambit:
Link to tweet
Thoughts on the Chief's Strategy in the Census Case
Joshua Matz // 7/1/19 // Commentary
Over the past few days, I’ve seen a lot of commentary—including from some lawyers whose opinion I respect a great deal—asserting that the Supreme Court’s opinion in Department of Commerce v. New York will prevent a citizenship question from appearing on the 2020 census. Many of these articles and tweets have celebrated the Chief Justice for his bravery, principle, and (long-delayed) unwillingness to accept pretextual reasons for a Trump Administration policy. To hear them tell it, this decision was a huge win.
Like Rick Hasen (here), Steven Mazie (here) [see the tweet below], Mike Dorf (here), and some others, I’m skeptical. Indeed, I think it’s extremely likely that the citizenship question will appear on the 2020 census—and the Chief intended precisely that result. Let me explain why.
{snip}
A final view is that the Chief wanted the agency to understand the scope and parameters of its own authority on remand—and wanted to define that authority in the broadest possible terms. As I see it, this is by far the most plausible view.
Assuming that is so, we have a clear sense of the Chief’s thoughts on the underlying issue. In the constitutional section of his opinion, he emphasizes the long history of asking demographic questions (including about citizenship) and knocks away any suggestion that the Enumeration Clause prohibits such an inquiry. In the statutory section, he rejects arguments that Secretary Ross violated the Census Act by failing to inform Congress in a timely manner and failing to consider alternative administrative methods of acquiring citizenship data. In the APA section, he concludes that the evidence before Secretary Ross supported the decision to use a citizenship question to obtain accurate citizenship information—thus rejecting powerful arguments that this decision was arbitrary and capricious because it would demonstrably result in a less accurate citizenship count.
The result is a Supreme Court opinion that eliminates nearly every constitutional, statutory, and regulatory objection that has been raised against the citizenship question, and that describes the decision to include this question as reasonable in light of empirical uncertainty about the best way to calculate the total number of citizens.
Ultimately, the Chief’s only complaint is that Ross offered a rationale for this decision that—to borrow a phrase from Scalia—taxes the credulity of the credulous:
{snip}
Joshua Matz // 7/1/19 // Commentary
Over the past few days, I’ve seen a lot of commentary—including from some lawyers whose opinion I respect a great deal—asserting that the Supreme Court’s opinion in Department of Commerce v. New York will prevent a citizenship question from appearing on the 2020 census. Many of these articles and tweets have celebrated the Chief Justice for his bravery, principle, and (long-delayed) unwillingness to accept pretextual reasons for a Trump Administration policy. To hear them tell it, this decision was a huge win.
Like Rick Hasen (here), Steven Mazie (here) [see the tweet below], Mike Dorf (here), and some others, I’m skeptical. Indeed, I think it’s extremely likely that the citizenship question will appear on the 2020 census—and the Chief intended precisely that result. Let me explain why.
Monday-morning quarterbacking the surprise Roberts decision in the census case, I'm increasingly wary. 1/8
Link to tweet
{snip}
A final view is that the Chief wanted the agency to understand the scope and parameters of its own authority on remand—and wanted to define that authority in the broadest possible terms. As I see it, this is by far the most plausible view.
Assuming that is so, we have a clear sense of the Chief’s thoughts on the underlying issue. In the constitutional section of his opinion, he emphasizes the long history of asking demographic questions (including about citizenship) and knocks away any suggestion that the Enumeration Clause prohibits such an inquiry. In the statutory section, he rejects arguments that Secretary Ross violated the Census Act by failing to inform Congress in a timely manner and failing to consider alternative administrative methods of acquiring citizenship data. In the APA section, he concludes that the evidence before Secretary Ross supported the decision to use a citizenship question to obtain accurate citizenship information—thus rejecting powerful arguments that this decision was arbitrary and capricious because it would demonstrably result in a less accurate citizenship count.
The result is a Supreme Court opinion that eliminates nearly every constitutional, statutory, and regulatory objection that has been raised against the citizenship question, and that describes the decision to include this question as reasonable in light of empirical uncertainty about the best way to calculate the total number of citizens.
Ultimately, the Chief’s only complaint is that Ross offered a rationale for this decision that—to borrow a phrase from Scalia—taxes the credulity of the credulous:
{snip}
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