By Robert Romano

The Supreme Court unanimously ruled that a citizenship question can be included in a Census under the U.S. Constitution, however a narrower 5 to 4 majority threw out the specific rationale used by the Trump administration for the 2020 Census, remanding the case to lower courts for adjudication.

Chief Justice John Roberts, joining the higher court’s liberal justices, stated “We do not hold that the agency decision here was substantively invalid. But agencies must pursue their goals reasonably. Reasoned decisionmaking under the Administrative Procedures Act calls for an explanation for agency action. What was provided here was more of a distraction.”

This is the so-called reasoned analysis that is supposed to accompany a regulation under Supreme Court precedent. The Department said it relied on the Department of Justice saying the information was needed to enforce the Voting Rights Act. In this case, however, the court ruled that the Department of Commerce “adopted the Voting Rights Act rationale late in the process” and the “evidence established that the Secretary had made up his mind to reinstate a citizenship question ‘well before’ receiving DOJ’s request, and did so for reasons unknown but unrelated to the VRA.”

The court added, “we share the District Court’s conviction that the decision to reinstate a citizenship question cannot be adequately explained in terms of DOJ’s request for improved citizenship data to better enforce the VRA. Several points, considered together, reveal a significant mismatch between the decision the Secretary made and the rationale he provided.”

The split decision, affirming that such a question could be asked, but remanding it to lower courts, appears designed to prevent the question from being included in the 2020 Census since the forms were supposed to be printed out in July.

However, President Donald Trump is not accepting no for an answer, tweeting from the G-20 Summit in Japan that printing the forms could be delayed, “Seems totally ridiculous that our government, and indeed Country, cannot ask a basic question of Citizenship in a very expensive, detailed and important Census, in this case for 2020. I have asked the lawyers if they can delay the Census, no matter how long, until the… United States Supreme Court is given additional information from which it can make a final and decisive decision on this very critical matter. Can anyone really believe that as a great Country, we are not able the ask whether or not someone is a Citizen? Only in America!”

Indeed, only in America, where a political question that the executive branch has discretion in, whether to include a citizenship question on the Census, is ruled to be something the Secretary of Commerce Wilbur Ross had the authority to include, but is also somehow considered to be an administrative matter subject to judicial review, where if the courts don’t like the “reasoned” explanation given, it gets thrown out.





In his dissent, Justice Samuel Alito noted, “Throughout our Nation’s history, the Executive Branch has decided without judicial supervision or interference whether and, if so, in what form the decennial census should inquire about the citizenship of the inhabitants of this country. Whether to put a citizenship question on the 2020 census questionnaire is a question that is committed by law to the discretion of the Secretary of Commerce and is therefore exempt from APA review… insofar as the Court holds that the Secretary’s decision is reviewable under the APA, I respectfully dissent.”

Alito is right. In fact, a citizenship question has been used in 12 out of 15 Censuses since 1870, and there’s no really good reason why it could not have been included in the 2020 Census.

Americans for Limited Government President Rick Manning blasted the ruling in a statement, noting that the federal government has a compelling interest in knowing how many citizens there are eligible for federal funds: “Federal spending to the states is largely based on population, and federal law prohibits people who are not in the U.S. legally from obtaining welfare. We were also assured by President Obama that Obamacare would not apply to those here illegally. The federal government knows how many people are in the U.S. legally through the normal immigration naturalization process.”

Certainly, that’s as good a reason as any to include such a question on the Census, but let’s face it, it came down to whether Roberts wanted the question on the Census or not. The Commerce Department offered its rationale, and it was rejected with prejudice.

The ruling came as Congress passed another $4.6 billion supplemental to provide humanitarian aid on the southern border as it is being overwhelmed by an unprecedented migration from Central America, and as the U.S. and Mexico came to an agreement to crack down after Trump threatened up to 25 percent tariffs on Mexican goods by October if more was not done to provide assistance.

That alone might be reason enough to see how big of a problem we really have. The country is being invaded by tens of millions of people who have no right to be here, intent upon taking over the voting franchise. The two-party system might become uncompetitive if that happens. This is about preventing one-party rule. And yet, every Democrat at the debate raised their hands wanting to give free health care to illegal immigrants to further incentivize this outcome.

The fact that the Secretary wanted the question included prior to consulting with the Department of Justice has been made material by the court’s ruling, and this must be overcome by the administration to put the Secretary’s original decision into a context that will satisfy the court with better documentation. Trump is doing everything he can be seeking to delay printing the forms to expedite another review.

That said, the real question is why the Supreme Court does not want the American people to know how many illegal aliens are in the U.S. presently?

For which, we can only speculate. So, I’ll take a gander. Since the early 2000s, lawmakers and government officials have, in an attempt to secure illegal immigrant amnesty, always pointed to a figure of 11 million illegal aliens in the country. Every year, the number never changes much. Nowadays, now it’s been slightly upgraded to 12 to 15 million illegal aliens.

Never mind the fact that about 40,000 illegal immigrants are apprehended on a monthly basis on the southern border, although that number has accelerated to more than 350,000 the past three months, according to U.S. Customs and Border Patrol. As far as official Washington, D.C. establishment is concerned, the number never really changes.

I believe the reason the establishment does not want this question included, is because if you knew how many illegal aliens there really are in the U.S. — other less conservative estimates say it could be as high as 29 million — you would be outraged. Even more outraged than you are right now about the issue. And that’s not a chance they’re willing to take.

Robert Romano is the Vice President of Public Policy at Americans for Limited Government.