What if Commerce Secretary Wilbur Ross decided it was a good idea to ask a few interesting questions on the next decennial census?
- How many people in your home had premarital sex?
- How many people in your home have a smartphone?
- How many people in your home know how to drive a stick shift?
Since the Constitution compels a census to be taken every ten years, and requires, per the Fourteenth Amendment, Section 2, that it count “the whole number of persons in each State,” why not seize upon the opportunity to throw in a few extra questions of interest? Would anyone care?
Except Ross chose to ask a different question, one about citizenship. There are substantive reasons why this is a problem, that it will likely produce a significant undercount, estimated to be about 5%, and thus undermine the purpose of a census. And since its use is to divvy up congressional districts and funding, it means those undercounted will be denied representation and money to which they are constitutionally entitled.
On the flip side, shouldn’t we want to know how many people are living in the United States unlawfully? This may well be a fair question, but not one related to the constraints of the census, which is why it hasn’t been asked since 1960. The addition of the question, with knowledge beforehand that it will likely render the census less accurate, not to mention add significant expense to performing the constitutionally mandated function, since failure to respond to the census will mean human census takers will have to go out and knock on doors, and they get paid to do so, seems counterproductive.
As interesting as the question of citizenship may be to some, it’s not the point of the census. And, despite the griping of the ignorant, even undocumented immigrants get counted. The Constitution says so, like it or not. There are plenty of people who don’t like what the Constitution says, even if the part they don’t like may not be the same, but just as the government has to comply with the part you like, it has to comply with the part you don’t as well.
The Supreme Court heard argument on the issue of whether the question of citizenship should be on the census in Department of Commerce v. New York. But the case doesn’t bear upon whether the question is a good one. The issue before the Court was whether the Secretary of Commerce went about its inclusion in accordance with law.
The legal problem, as the trial judges found, was that the addition of the citizenship question followed a flawed administrative process, disregarded contrary data and advice from the Census Bureau and was justified with inaccurate, false or pretextual reasoning.
Secretary Ross’s action violated three mandates from Congress. First, the government must use alternative data sources before adding questions to a census questionnaire to acquire the information. Second, Congress required Mr. Ross to review any changes with Congress three years before the census. He failed to meet that deadline. Third, agency officials cannot act arbitrarily and without a factual basis, as Mr. Ross did.
So what, proponents of the question reply? Red tape. Bureaucracy! Rules. And that’s where they feel the sting of their petard pierce their hypocrisy. The decision of what questions to ask on the census may ultimately reside with the Secretary of Commerce, but only because Congress says so. It doesn’t mean Ross gets to put any question he wants on the census. He can’t wake up from a dream and decide to ask what people’s shoe size is. Or any other question.
And when another bureaucrat in government, say one in the Office of Civil Rights of the Department of Education or Justice, wants to introduce their personal agenda by circumventing law and sending out a letter to those whose world they can make miserable, it’s just as wrong. And if it’s wrong for them, it’s wrong for Ross.
That shouldn’t be a difficult question to answer. Three judges so far — including one in New York, whose ruling is now under review at the Supreme Court — have said that Mr. Ross broke federal rules when he set out to include the citizenship question. Federal courts generally defer to government agencies and officials, unless those agencies do things that are determined to be arbitrary or capricious — as has been common in the Trump era.
That’s how judges have described Mr. Ross’s conduct. It should be straightforward for this Supreme Court, which has long professed skepticism toward the federal bureaucracy, to investigate the actions of a bureaucrat who has had a hard time following the law.
Cristian Farias has a point, despite the argument favored by three-year-olds about who started it. Either arbitrary acts can be committed by bureaucrats or they can’t. Either the administrative state gets to do whatever it pleases or it can’t. Either the Court defers to bureaucrats or it doesn’t, and the Court has shown an inclination to bring to an end the deference it’s shown under Chevron and Auer to the level of deference that has allowed bureaucrats to impose its will to circumvent Congress and reinvent law to its own liking.
That is the question before the Supreme Court, not whether citizenship is an otherwise fine question.
During Tuesday’s arguments, the conservative majority showed little interest in the fact that Mr. Ross ignored the expertise of the United States Census Bureau, which had warned that the citizenship question would lead to significant undercounts because immigrants may be wary of participating. And it could lead to cost overruns, estimated in the tens of millions of dollars, because unresponsive households require more follow-up. “There’s no question that the bureau staff preferred not to have this question on the census,” Noel Francisco, the Justice Department’s top Supreme Court lawyer, conceded on Tuesday. But, he argued, Mr. Ross acted reasonably.
The integrity of the Supreme Court’s process, as the Least Dangerous Branch, relies entirely on its capacity to remain doctrinally sound and consistent. If, like the the social justice crowd complains in its projection of hypocrisy on the Court, it allows the Secretary of Commerce to slough off law to achieve an outcome, then any decision to limit deference otherwise to the administrative state will forfeit any claim to integrity.
Did Wilbur Ross act reasonably in deciding to include a question about citizenship to the census, even if he did so in defiance of law and contrary to fact and his own census staff’s positions? The answer tends to be based on what you think of his outcome, his decision. But the question for the Court is his process in getting there, and about that there is little question. If Ross can do it, so can every other bureaucrat. Even when the administration is held by the other team.