The Potential Danger of Department of Commerce v. New York

Matina Smith

Throughout the United States’ history, the status of immigrants and their pathways to citizenship has fluctuated, with past presidential administrations excluding specific racial groups for various reasons. It is common for immigrants to be fearful of authorities discovering their immigration statuses, especially if they are not legal residents. In early 2018, Secretary of Commerce Wilbur Ross gave them more reason to be fearful by announcing plans to reintroduce a citizenship question into the 2020 Census. Multiple states immediately formed a coalition to challenge this decision.

In January 2019, the case first went to the U.S. District Court for the Southern District of New York. This court ruled against the Department of Commerce, forbidding the addition of the citizenship question to the census on the grounds that it would deter immigrants who are not legal citizens from responding. The Department of Commerce then filed a petition for mandamus to the Supreme Court in hopes of reversing the lower court’s decision. Ultimately, the Supreme Court granted the department’s petition and heard its arguments in Department of Commerce v. New York.

New York Solicitor General Francisco argued that Ross had the right to add the citizenship question to the census, as Francisco reasoned it could be used by the federal government to count how many undocumented citizens are in the country’s total population. Francisco contended that Ross violated the Enumeration Clause of the Constitution and the Census Act of 1790, which both state that representation in the House of Representatives will reflect the population counted in the census taken every ten years. New York also argued that the reasons Ross stated for implementing the citizenship question were fabricated. Ross claimed that the addition was a request from the Department of Justice, when in reality, he attempted to elicit a request from them. The Supreme Court made six decisions in this case, but the main issue of adding the citizenship question to the 2020 Census was the only unanimous decision in New York’s favor. The Court restrained the secretary of commerce from adding the question because it found that the secretary acted arbitrarily and capriciously, which was shown through his conflict with the administrative record.  

This decision was only partially correct. The census’ purpose is to provide an accurate count of the entire United States’ population, not its legal population. The Census Bureau itself stated that a citizenship question would increase the likelihood of undocumented immigrants not responding to any parts of the form out of fear of government detainment and deportation. The census would thus not provide an accurate count of all the people residing in the United States, which is its main purpose, according to the aforementioned Enumeration Clause and Census Act. 

The Supreme Court incorrectly decided in a 5–4 decision that Ross did not violate either the Enumeration Clause or Census Act. But Wilbur Ross did violate the Enumeration Clause and Census Act; the clause and act, in conjunction with one another, provide a legal basis for an accurate population count to be taken every 10 years. The Enumeration Clause specifies that a population count will be taken every 10 years, and the Census Act created legislation for the first census to take place, therefore providing a basis for all subsequent census counting. The introduction of a citizenship question threatens an accurate population count that could lead to both improper representation in the House of Representatives and the misallocation of sufficient government funds. 

The Supreme Court’s decision that Ross did not violate the Enumeration Clause allows the threat of an inaccurate count to persist in the future. Since the Court ruled in New York’s favor primarily because of Francisco’s conflict with the administrative record, this allows for future administrations to challenge the decision. Furthermore, the Court’s failure to state that the addition of a citizenship question did not violate the Enumeration Clause and Census Act allows future administrations to argue for the addition of the question when the administrative record is clear.

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