DOJ asks SCOTUS to consider constitutional claim against census citizenship question

The U.S. Department of Justice (DOJ) requested on March 11 that the U.S. Supreme Court weigh in on Judge Richard Seeborg’s constitutional claim challenging the addition of a citizenship question on the U.S. Census when it hears Department of Commerce v. New York in April 2019. Seeborg’s ruling was the second decision by a federal judge since January challenging the addition of the citizenship question, which asks, “Is this person a citizen of the United States?”

Seeborg issued a ruling in State of California v. Ross on March 6, 2019, holding that Commerce Secretary Wilbur Ross’ addition of a citizenship question on the 2020 census was, in his view, unconstitutional and a violation of the Administrative Procedure Act (APA). Seeborg ruled that the question was unconstitutional because it prevented the federal government from carrying out its duty under the U.S. Constitution’s Enumeration Clause to count every person living in the United States every 10 years, which could distort the proper apportionment of congressional representatives. He also held that the question violated the APA because he interpreted the administrative record in the case as being contrary to law.

Seeborg’s ruling follows Judge Jesse Furman’s decision in January 2019 holding that the citizenship question violated the APA by failing to follow proper procedure. Though plaintiffs in the case had also argued that Ross violated the equal protection component of the U.S. Constitution’s Due Process Clause, Furman held that the due process claims fell short because the administrative record in the case did not demonstrate discrimination as a motivating factor for Ross’ decision. The U.S. Supreme Court announced in February that it would hear Furman’s case—Department of Commerce v. New York—in April 2019.

Solicitor General Noel Francisco sent a letter to the U.S. Supreme Court on March 11, 2019, asking the court to also consider Seeborg’s constitutional claims when they hear Department of Commerce v. New York. “In light of that finding, only if the Court addresses respondents’ Enumeration Clause claim can its decision definitively resolve whether the Secretary may reinstate a question about citizenship to the 2020 decennial census,” said Francisco. He continued, “In the alternative, if the Court has any concerns about addressing respondents’ Enumeration Clause claim in this case, it should grant the government’s petition in the California case and consolidate that case with this one for oral argument.”

Two additional lawsuits claiming that the citizenship question discriminates against immigrant and minority communities are pending before Judge George Hazel of the United States District Court for the District of Maryland. Hazel heard closing arguments in February.