SCOTUS Case Preview: Census Citizenship Question

April 12, 2019 by Dan McCue
U.S. Secretary of Commerce Wilbur Ross speaks at the National Press Club Headliners Luncheon in Washington, D.C., on May 14, 2018. (Cheriss May/Sipa USA/TNS)

This is one of five noteworthy Supreme Court cases that will be heard between April 16 and April 23. You can read the other previews here:

Perhaps the most closely watched oral arguments over the next two weeks will be those for Department of Commerce v. New York, otherwise known as the Census/Citizenship Question case, on Tuesday, April 23.

The Justices are being asked to decide whether a federal judge erred in enjoining Secretary of Commerce Wilbur Ross from reinstating a question about citizenship to the 2020 census questionnaire.

In addition they will consider whether, when someone is seeking to set aside an agency action, a federal judge can order discovery outside the administrative record to probe the mental processes of the agency decision matter.

In considering this second element, the justices will weigh in on whether a lower court can compel the testimony of high-ranking executive branch officials when there is no evidence that the decision maker disbelieved the objective reasons for enacting the policy as stated in the administrative record, and that they acted in an illegal manner to adopt the policy.

After Commerce Secretary Ross announced he was reinstating a citizenship question on the 2020 Census questionnaire, a coalition of states, cities, and counties challenged the decision in federal court.

The challengers claim the Secretary’s decision was arbitrary and capricious and that it violates various regulatory, statutory, and constitutional provisions.

The case was heard in the U.S. District Court for the Southern District of New York which authorized, at the challengers’ request, depositions of executive branch officials to determine Ross’s subjective motivations in making the decision at issue.

The government sought a stay blocking that testimony, but their request was denied to give the court of appeals a chance to weigh in on the issue.

The court of appeals denied mandamus relief to quash the deposition of Secretary Ross and the deposition of other high-ranking officials, so the government renewed its application for a stay. The U.S. Supreme Court then blocked the deposition of Secretary Ross but allowed others to proceed.

The government then filed a petition asking the justices to direct the trial court to exclude fact-finding beyond the official records, or, in the alternative, review the appellate court decision itself.

Before the Court could rule, however, the district court issued its decision enjoining the Secretary from reinstating the question at issue. That action rendered the original case moot but raised the question of whether the district court properly issued the injunction.

The case is 18-966 Department of Commerce v. New York.

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