The U.S. Supreme Court heard oral arguments on Tuesday in Department of Commerce v. New York, a case challenging the addition of a citizenship question on the U.S. Census. The question asks, “Is this person a citizen of the United States?”

 

Commerce Secretary Wilbur Ross approved the addition of a citizenship question on the 2020 U.S. Census in March. Four federal judges had blocked the question from appearing on 2020 census forms as of April 2019.

 

The court considered a constitutional argument against the question in addition to claims that the steps taken by the U.S. Department of Commerce to add the question violated administrative procedure under the Administrative Procedure Act (APA).

 

The constitutional argument alleges that the citizenship question is unconstitutional because it prevents 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.

 

The administrative procedure challenge claims that, according to the administrative record, the process followed by the agency to add the citizenship question to the census was arbitrary and capricious in violation of the APA.

 

An analysis of the hearing by SCOTUSblog predicted a 5-4 decision to uphold the citizenship question with the justices divided along ideological lines. A ruling is expected in June.

 

U.S. District Judge Stanley Bastian issued a preliminary injunction to block a new Trump administration rule aimed at keeping Title X fund recipients from engaging in abortion-related activities. Preliminary injunctions keep a new rule from going into effect while a court decides how to resolve legal challenges brought against it. In this case, the U.S. Department of Health and Human Services (HHS) issued a final rule prohibiting the use of Title X funds to perform, promote, or refer for abortion as a family planning method. The rule also requires clear financial and physical separation for clinics conducting Title X and non-Title X activities.

 

Judge Bastian argued that his injunction was appropriate because the plaintiffs in the case presented facts and arguments supporting the claims that the rule would violate existing laws and regulations, was made in violation of the Administrative Procedure Act (APA), and would cause Title X fund recipients to suffer irreparable harm. Bastian also said that the state of Washington showed that it stood to lose over $28 million dollars in savings because “it is not legally or logistically feasible for Washington to continue accepting any Title X funding subject to the Final Rule.” He said one of the plaintiffs, the National Family Planning & Reproductive Health Association, represents over 65 Title X grant recipients and that many members of their network would leave once the final rule went into effect, “thereby leaving low-income individuals without Title X providers.” The Title X rule is scheduled to go into effect on May 3, 2019, and more lawsuits against the rule are pending in other courts.

 

Judge Bastian devoted most of his analysis to the likely effects of the final rule, but his order granting the injunction also mentions the arbitrary-or-capricious test. Under the APA, courts reviewing agency decisions must rule against actions found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. The people challenging the rule argued that it was “arbitrary and capricious because it reverses long-standing positions of the Department without proper consideration of sound medical opinions and the economic and non-economic consequences.”

 

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