Read: The citizenship question isn’t quite dead yet
If that question sounds simple, the answer is, “Have you ever met a statute?” Written by multiple committees, often in haste, important statutes can be impenetrable, tail-swallowing word salads that daunt even judges. “[W]hat happened to the Eighth Amendment?” the late Justice Antonin Scalia once snapped at a lawyer who suggested the Court read the entire Affordable Care Act. “You really want us to go through these 2,700 pages?”
But lawyers and courts must read entire statutes. That’s because agencies are “creatures of statute”; no agency has any power not specifically given to it by statute. Administrators can’t just wake up one morning and say, “Hey, let’s do this!” They must follow set procedures when they make their own internal rules, when they make regulations that govern the public, and when they penalize people or companies for violations of federal statutes and rules.
Back to Department of Commerce v. New York: The census form hasn’t asked whether each person listed is a U.S. citizen since 1950.
Whatever you think of the idea as a general matter, it presents complex issues in the 2020 census context. The first is whether the department followed proper procedures in changing the question; the second is whether a citizenship question will make the 2020 census count more accurate and useful.
To understand the stakes, recall that the U.S. census is one of the few in the world that is required by its country’s constitution. The Framers in 1787 were well aware that in England, seats in the House of Commons were handed out in arbitrary fashion: Some huge towns had only one member—or were lumped in with rural areas—while other “rotten boroughs” had a full seat despite having as few as half a dozen voters. (Old Sarum, Wiltshire, for example, comprised three houses and seven voters, but had its own member of Parliament.)
Read: The 2020 census is already in big trouble
The framers wanted the U.S. House of Representatives to be the “people’s house,” and to do that, distribution of seats had to be fair. For this reason, they provided in Article I § 2 cl. 3 that representatives would be awarded to states “according to their respective numbers,” and that those numbers would be determined by a new count (an “actual enumeration”) every 10 years. Conducting the census is not simply a power granted to Congress; it is a positive duty as well. And since the demise of the infamous three-fifths clause (which counted each slave as only 60 percent of a “free person”), courts have read “respective numbers” to mean everybody, not just citizens or voters.
Congress delegated that job to the Census Bureau in the Census Act. As amended over the years, it specifies both the aims of the census and the procedures to be used in creating and compiling it. The act in particular restricts what information can be gathered, how it can be gathered, and how it can be used.