Supreme Court conservatives appear ready to OK Trump’s census citizenship question

[JustBecause 112]

Could be huge especially for the large blue states. 

 

Citizenship Question

[David Dennison 19440]

Assuming Roberts sides with the conservatives.

Looks like he will.

 

Edited April 23, 2019 by David Dennison

[tucker 238]

 

[tantric superman 4668]

What's the legal argument against allowing the question?  I understand the impact, and I'm sympathetic to a large to degree to the concerns.  I just haven't read up to know where there is a good constitutional argument against the inclusion.

[SuingToGetAMessageBoard? 3861]

Just now, tantric superman said:

What's the legal argument against allowing the question?  I understand the impact, and I'm sympathetic to a large to degree to the concerns.  I just haven't read up to know where there is a good constitutional argument against the inclusion.

Big picture is it is intentionally designed to get a bad census result.  

Small picture is that Commerce can only ask what the other departments want it to ask.   No one would ask for it.  Ross even shopped it around to different departments, asking people to ask him, and come up with a reason to ask for it.  No one would.  That's as APA violation.

[tantric superman 4668]

Thanks. 

Figure the conservative argument is kind of a rif on "illegal immigrants are animals, and it's a people census"?

[horncyclist 1391]

2 minutes ago, tantric superman said:

Thanks. 

Figure the conservative argument is kind of a rif on "illegal immigrants are animals, and it's a people census"?

It's general deference to the President and the executive branch, which I'm sure they'll give the same to President Elizabeth Warren when she circumvents the APA to enact climate change policies. Except she'll follow the APA because she and her administration will be competent unlike these fuckwits. 

Edited April 23, 2019 by horncyclist

[Js1 86926]

20 minutes ago, JustBecause said:

Could be huge especially for the large blue states. 

 

Citizenship Question

Texas was anticipated to gain +3 seats/electoral votes

Arizona +1

NC +1

Florida +2

By undercounting undocument immigrants, this may change bigly.  

[tantric superman 4668]

Yeah, but climate change isn't discussed in the Constitution, so will have to nix the Warren law.

[SuingToGetAMessageBoard? 3861]

Lulz. This is the Commerce Department's brief.

Quote

 The Secretary’s decision here, the court surmised, was not “supported by ‘objective scientific evidence’ ” and might have been subject to “improper ‘external political pressures.’ ” Pet. App. 320a (citation omitted). But deferential APA review is not limited to agency decisions resting on “objective scientific evidence,” and the court cited no contrary authority.

Sure, it was scientifically certain to be worse, but nothing says we have to believe in science.  None more republican.

[Asithappens 978]

Does the Court have the power to prevent the Executive branch from doing dumb ass things? 

That seems to be the legal issue.

I agree with the conservatives on the court. I don't agree that it's a good thing to do. 

But good =/= legal.

[SubliminalHorn 6995]

I guess I’m confused. The Constitution says every person should be counted. Not citizens, persons. So wouldn’t conservatives look at that immediately and say, sorry, unconstitutional? 

[HenryJames 67115]

4 minutes ago, SubliminalHorn said:

I guess I’m confused. The Constitution says every person should be counted. Not citizens, persons. So wouldn’t conservatives look at that immediately and say, sorry, unconstitutional? 

rayliottalaughing.gif

[horncyclist 1391]

5 minutes ago, SubliminalHorn said:

I guess I’m confused. The Constitution says every person should be counted. Not citizens, persons. So wouldn’t conservatives look at that immediately and say, sorry, unconstitutional? 

The stated goal will still be to count every person, they just want the non-citizens to identify themselves as such for, you know, research purposes.  Now of course, undocumented immigrants, and likely citiizens in the same household, are going to be very reluctant to respond to any such inquiry. The end result will be a massive undercount of people, which, to your point, goes against the constitutional mandate. Now, anyone with half a brain can see this as the end result and since the administration had no valid reason for making the changing, courts are within their power to check the executive branch. However, the so-called conservatives are  apparently going to go against that reasoning. I'll leave it to you to figure out what's really going on. 

 

[TexArcher 38816]

10 minutes ago, SubliminalHorn said:

I guess I’m confused. The Constitution says every person should be counted. Not citizens, persons. So wouldn’t conservatives look at that immediately and say, sorry, unconstitutional? 

The only part of the Constitution the GOP gives a shit about is the 2nd Amendment.

[wildcat09 29556]

Roberts and his “this is necessary for enforcement of the VRA” bullshit can fuck himself. The gall for the piece of shit who destroyed the VRA to pretend that he’ll make his purely partisan decision in this case to protect the VRA is off the charts.

Edited April 24, 2019 by wildcat09

[horncyclist 1391]

3 hours ago, Asithappens said:

Does the Court have the power to prevent the Executive branch from doing dumb ass things? 

That seems to be the legal issue.

I agree with the conservatives on the court. I don't agree that it's a good thing to do. 

But good =/= legal.

Under the Administrative Procedures Act, they're not allowed to do dumb ass things, which courts define as "arbitrary and capricious" or decisions with "no rational basis." That is one of the issues in the case. 

[tantric superman 4668]

[Patrick Bateman 3966]

Why wouldn't migrants just fill out the form and not mark it or mark yes?  This is supposed to be confidential regardless and the maximum penalty is $500, which would most likely be thrown out because.... yea, we covered this.  If they add the question, then folks should just skip the question in protest.

[WhatTheBuck 28904]

Well, duh. They're also going to trample all over LGBTQ rights. 

[tantric superman 4668]

35 minutes ago, Patrick Bateman said:

Why wouldn't migrants just fill out the form and not mark it or mark yes?  This is supposed to be confidential regardless and the maximum penalty is $500, which would most likely be thrown out because.... yea, we covered this.  If they add the question, then folks should just skip the question in protest.

Why wouldn't they just not fill it out and say they did?

[Patrick Bateman 3966]

8 minutes ago, tantric superman said:

Why wouldn't they just not fill it out and say they did?

Civic duty?

[tantric superman 4668]

Would you expect people who smoke weed illegally to answer that on their Census documentation?

[Asithappens 978]

8 hours ago, horncyclist said:

Under the Administrative Procedures Act, they're not allowed to do dumb ass things, which courts define as "arbitrary and capricious" or decisions with "no rational basis." That is one of the issues in the case. 

This isn't arbitrary and capricious, that's pretty clear, at least imo. And there is a rational basis. It's the consequences that are less than desirable. 

[horncyclist 1391]

1 hour ago, Asithappens said:

This isn't arbitrary and capricious, that's pretty clear, at least imo. And there is a rational basis. It's the consequences that are less than desirable. 

I think the way the decision was made makes it debatable. I haven't dug into this though, just flagging one of the issues.

 

 

[Nice Guy Eddie 13706]

There’s little doubt of the purpose of this question: to scare some illegal or legal immigrants from answering.  Census experts told Wilbur Ross that other methods are more accurate to count citizenship status but he has the inherent wisdom of knowing how to count people.

But does this rise to a level of shameful behavior that will convince Roberts to take action?  Who knows. My guess is that he punts that this is an Admin function and not for the courts to intervene.

[SuingToGetAMessageBoard? 3861]

1 hour ago, Nice Guy Eddie said:

But does this rise to a level of shameful behavior that will convince Roberts to take action?

Roberts seems to be a non-partisan-hack judge but at the same time lives in a clean pretty theoretical world instead of reality.  Those two pull in opposite directions here.  My bet is he goes with the administration because to say otherwise is to say Ross is a liar.  And nothing is worse for him than a lack of decorum.

[Asithappens 978]

1 minute ago, SuingToGetAMessageBoard? said:

Roberts seems to be a non-partisan-hack judge but at the same time lives in a clean pretty theoretical world instead of reality.  Those two pull in opposite directions here.  My bet is he goes with the administration because to say otherwise is to say Ross is a liar.  And nothing is worse for him than a lack of decorum.

Imo, this has little to nothing to do with showing up Ross to be a liar.

The law gives wide discretion to Ross. Just b/c it's dumb or may lead to an under count of hispanics isn't the key issue.

I don't know why dipshit states (unfortunately, Texas falls into this category for POLITICAL purposes) don't scream about this. Texas could lose a congressional seat!

[SuingToGetAMessageBoard? 3861]

5 minutes ago, Asithappens said:

Imo, this has little to nothing to do with showing up Ross to be a liar.

 

The reason that is your opinion is because this is a message board where no one actually reads the underlying documents.  It's the entire heart of the argument.  The underlying courts found it was pretextual basis, and rejected the question on that basis. Huge  swaths of the briefs are devoted to it.

Quote

4. The Secretary’s Rationale Was Pretextual.

a. The district court also properly found the Secretary’s decision to be arbitrary and capricious because it relied on a pretextual rationale. The Secretary purported to defer to a genuine, independent request by DOJ for additional citizenship data to improve VRA enforcement. But in fact, the Secretary had already decided to add a citizenship question before receiving DOJ’s request. And petitioners never disclosed—until this litigation—that it was the Secretary and his staff who provided the VRAenforcement rationale to DOJ and then worked closely with DOJ to draft the December 2017 letter articulating that rationale. The Secretary’s rationale for adding a citizenship question thus misrepresented that he was deferring to DOJ’s expert judgment, when in fact the decision was driven by the Secretary and his staff. Settled principles of administrative law foreclose any deference when a decision-maker falsely claims to rely on the expertise of another agency to defend its 13 DOJ’s December 2017 letter is no substitute for such reasoning. DOJ did not conduct the balancing that the Secretary purported to do here, and in any event the Secretary cannot blindly defer to another agency’s request to add a question to the decennial census. See Delaware Dep’t of Nat. Res. & Envtl. Control v. EPA, 785 F.3d 1, 16 (D.C. Cir. 2015). 55 determination. First, the APA requires an agency to disclose the actual rationale for its action so that the reviewing court may understand “the basis on which the [agency] exercised its expert discretion.” Burlington, 371 U.S. at 167; see S. Rep. 79-752, at 15 (1945) (agency must “explain the actual basis” of its rules). As petitioners conceded below, presenting a false rationale for a decision would violate the APA. (Pet. App. 312a-313a.)

Second, a decision-maker acts arbitrarily by purporting to rely on another agency’s expertise when, in fact, the decision-maker instructed that agency rather than the other way around. Such illusory reliance undercuts the foundational premise for judicial deference to administrative action: that the decision resulted from an exercise of specialized expertise that courts lack. See State Farm, 463 U.S. at 54. When a decision-maker purports to rely on an exercise of expert judgment that never happened, there is nothing to which the courts can defer. The Secretary’s decision to add a citizenship question transgressed both these principles. While the Secretary represented that he was responding to DOJ’s December 2017 request, the Administrative Record demonstrates that the Secretary decided to add a citizenship question months before that request, as the district court explained in detail. (Pet. App. 118a-129a.) The Secretary and his staff then engaged in extensive discussions—both internally and with outside parties—that presumed the decision to add a citizenship question had already been made, and turned to how best to “execut[e]” that decision. (J.A.402.) Absent from these discussions was “any mention, at all, of VRA enforcement.” (Pet. App. 313a.) 56 The Administrative Record demonstrates that the Secretary and his staff also went to “extraordinary lengths” (Pet. App. 318a) to find any other agency to request the citizenship question and thus provide “cover for a decision” that had already been made (Pet. App. 124a). In particular, after both DOJ and DHS initially refused to request a citizenship question (J.A.414), the Secretary personally called the Attorney General (J.A.252-253, 281-282), leading the Attorney General’s Chief of Staff to assure Commerce that DOJ would “do whatever you all need us to do” (J.A.254). And after the Secretary’s staff provided “DOJ with the [VRA] rationale” (Pet. App. 121a), Gore drafted DOJ’s letter. The trial evidence reinforces the district court’s findings from the Administrative Record. For instance, a key member of the Secretary’s staff “all but admit[ted] that Secretary Ross had made up his mind to add the citizenship question in the spring of 2017,” and that his task in soliciting support from other agencies was to “‘find the best rationale’ to support” that predetermined result. (Pet. App. 314a.) Gore admitted that he drafted DOJ’s letter solely in response to the Secretary’s request and principally based on Commerce’s written work product and advice, rather than any expertise of DOJ staff. (J.A.1077-1078, 1114- 1115; Pet. App. 125a.) And Gore admitted not knowing whether a citizenship question would result in citizenship data more accurate than the data DOJ already uses. (J.A.1100-1103.) The district court thus properly found that DOJ’s letter reflected the Secretary’s assertions about the VRA rationale rather than any independent judgment by DOJ. But courts should not defer to the Secretary of Commerce’s judgment about VRA enforcement. Cf. National Fuel, 468 F.3d at 843 (no deference to Federal Trade Commission’s report that “relied largely on [Federal Energy Regulatory Commission’s] assertions, not the FTC’s independent examination”). b. Petitioners offer no persuasive answer to the district court’s factual findings or legal reasoning. Instead, they repeatedly mischaracterize the nature of the Secretary’s decision, as the district court found. For example, petitioners argue (Br. 41-42) that the district court faulted the Secretary merely for having “additional” reasons beyond the purportedly “rational and supported” reason he gave. But the district court did no such thing; it found that the sole reason the Secretary provided—deference to DOJ’s independent judgment about its VRA-enforcement needs—was neither rational nor supported because DOJ did not exercise independent judgment, and the VRA rationale was inadequate. Petitioners similarly argue (Br. 43) that the Secretary merely had an “inclin[ation] towards a certain policy position” when he “reached out to DOJ to ask if it would support that policy.” But the court found that the Secretary had already decided to add the citizenship question, manufactured the VRA-enforcement rationale, provided it to DOJ to present as its own, and then made it appear as if DOJ had independently exercised judgment to request citizenship data. (Pet. App. 120a-121a.) These circumstances, along with other evidence, supported the district court’s finding that the rationale given by the Secretary was pretextual. c. There is no basis for petitioners’ contention (Br. 42) that a finding of pretext requires evidence that the Secretary subjectively disbelieved the stated grounds for the decision, irreversibly prejudged the decision, or was otherwise driven by some legally forbidden motive. Such evidence could support a finding of bad faith that renders an agency decision arbitrary and capricious. See Woods Petroleum Corp. v. United States Dep’t of Interior, 18 F.3d 854, 859-60 (1994), adhered to on reh’g en banc, 47 F.3d 1032 (10th Cir. 1995). But an agency’s decision is also arbitrary when it recites a false rationale, or purports to rely on a nonexistent exercise of expert judgment—for instance, if an agency were to claim that its decision was based on studies that had never been conducted. In any event, the district court’s pretext finding would be supported even if such a finding required proof that the Secretary had an unalterably closed mind or subjectively disbelieved the VRA-enforcement rationale. Ample evidence demonstrated that the Secretary had “decided to add the question for reasons entirely unrelated to VRA enforcement well before he persuaded DOJ” to send its letter. (Pet. App. 318a.) And evidence likewise demonstrated that the Secretary did not believe the VRA-enforcement rationale, such as evidence that the Secretary urged officials who lacked VRA-enforcement responsibilities to request the citizenship question. (Pet. App. 120a-121a.) The district court thus properly found that any presumption of regularity was rebutted under the exceptional facts presented here. See United States v. Armstrong, 517 U.S. 456, 470 (1996).

 

Quote

D. The Secretary’s Stated Rationale Cannot Be Set Aside As Pretextual

The district court found that the Secretary’s decision flunked APA review for the further reason that his stated rationale was allegedly “pretextual”—by which the court meant “the real reason for his decision was something other than the sole reason he put forward in his Memorandum, namely enhancement of DOJ’s VRA enforcement efforts.” Pet. App. 311a. Without identifying what that “real reason” supposedly was, the court concluded that the Secretary “made the decision to add a citizenship question well before he received DOJ’s request and for reasons unrelated to the VRA.” Id. at 313a. [truncated because i'm already in longcat world]

 

 

[Asithappens 978]

Right, that's what the District Court held.

That doesn't make it so (or make it not so....). 

This is a legal issue and one will never know, or able to prove the underlying actual reason. 

I'm saying that is sufficient evidence and legal argument to let Ross's decision go forward. So, even if one reads the underlying documents, it still is reasonable to say that this has little or nothing to do with calling out Ross as a liar. There is historical precedent for such a question. Just b/c the outcome is dumb doesn't mean Ross can't have the question added.

 

[Nice Guy Eddie 13706]

I don't think there is any question by anyone other than Sanders that Ross lied about this issue. But whether he lies or not (narrator: he does) is not the question in front of the SCOTUS.

[A Cellar Honker 19]

I know.  We can count illegals as three-fifths of a person.

[TwiceHorn 31984]

It's kind of funny.  Take away all the value judgments, or most of them, and here's what you have.

The Department of Commerce is charged by Congress with carrying out the census.  Art. 1, s. 2, United States Constitution; Title 13, United States Code.  The Secretary of Commerce "shall prepare questionnaires, and shall determine the inquiries, and the number, form, and subdivisions thereof, for the statistics, surveys, and censuses provided for in this title."  The DoC generates its own rules and regulations for the Census at Chapter 1, Title 15, Code of Federal Regulations.

The question then is what kind of question can the DoC put in the census given the above framework?  Seems simple, pretty straightforward.

But then you inject all the politics and it goes bananas.

If there were no judicial review, there would be a simple, straightforward answer that most of you that don't like judicial review wouldn't like.

 

[TxTower 684]

Let’s cut to the chase. Why worry about whether non-citizens of the US respond to the census?

 

 

 

[GSU&UT 1799]

3 minutes ago, TxTower said:

Let’s cut to the chase. Why should the census count include non-citizens of the US ?

Because the census is supposed to count Free Persons. There are many other more accurate ways of getting a count of non-citizens which won't affect the count of the census.

[TxTower 684]

Because the census is supposed to count Free Persons.

Correction. The term is free Persons in the constitution and it is an antiquated term at best meant to exclude slaves. Yes that is how antiquated that term is.

So it is your belief that the intent of the founding fathers was to count everyone living in the US - including those here illegally - for purposes of representation and federal funding?

Does adding the citizenship question prevent illegals from answering the census?

[GSU&UT 1799]

1 minute ago, TxTower said:

 

Correction. The term is free Persons in the constitution and it is an antiquated term at best meant to exclude slaves. Yes that is how antiquated that term is.

So it is your belief that the intent of the founding fathers was to count everyone living in the US - including those here illegally - for purposes of representation and federal funding?

Does adding the citizenship question prevent illegals from answering the census?

 

Yes it does, how disingenuous can you be? All sorts of experts are saying this will lead to a huge under-count and that it solves no existing problem, unless that problem is entirely something political that the GOP is creating.

[Js1 86926]

8 minutes ago, TxTower said:

Does adding the citizenship question prevent illegals from answering the census?

 

If they believe the Trump government would use it to target them, yes.

And let's be real fucking honest - everything about this Presidency says Stephen Miller will make sure of it, the GOP Senate will do nothing to stop it and SCOTUS will validate it because "EXECUTIVE POWER." 

Edited April 24, 2019 by Js1

[wildcat09 29556]

Love to see original intent proponents switch to "oh that term is antiquated so let's invent another standard to use" when it suits their politics. 

[GSU&UT 1799]

13 minutes ago, wildcat09 said:

Love to see original intent proponents switch to "oh that term is antiquated so let's invent another standard to use" when it suits their politics. 

Hell yeah, time to ban all guns that are semi-automatic.

Edited April 24, 2019 by GSU&UT

[hayden_horn 11401]

yeah, so i have some unique insight on this, given that i worked for the 2010 census.

immigrant populations, hell, even native spanish speaking citizens, are wary of the census, just as crazy fundamentalist white people are. they feel the government is going to take action on the information given. 

however, these people are here, using our roads, paying sales taxes, sending their children to schools. we need a fucking accurate count. and this will affect an already skewed down count of hispanics in texas.

by the way, the question can go largely unanswered by census rules. if i recall correctly, the magic number was 3. we needed a minimum of three parts of the questionnaire answered for the census to accept it as complete.  the main bottom line is the # of people. other demographic information is gravy for analysis, but the main purpose in # for house reps and for funding.

that's also why getting an accurate homeless count is important, but apd pretty much prevented that by sabotaging months of planning with homeless advocates the night the count was to occur by running the homeless out of known areas. which was sort of a relief, because the method of counting homeless people was borderline barbaric, but that's a story for another time.

[TxTower 684]

If they believe the Trump government would use it to target them, yes.
And let's be real fucking honest -

Yes let’s be real fucking honest. Why should we care what non-citizens living in this country illegally believe about a census count?

[wildcat09 29556]

Let's get even more honester: Why shouldn't we machete them all to death?!

[TxTower 684]

Let's get even more honester: Why shouldn't we machete them all to death?!

Well one things for certain - we can always count on you for stupid hyperbole.

[TwiceHorn 31984]

39 minutes ago, TxTower said:

 

Correction. The term is free Persons in the constitution and it is an antiquated term at best meant to exclude slaves. Yes that is how antiquated that term is.

So it is your belief that the intent of the founding fathers was to count everyone living in the US - including those here illegally - for purposes of representation and federal funding?

Does adding the citizenship question prevent illegals from answering the census?

There was no real conception of US citizenship at the time of the Constitution, or at least none articulated in it.  Accordingly, no one was here illegally.

[hayden_horn 11401]

8 minutes ago, TxTower said:

Yes let’s be real fucking honest. Why should we care what non-citizens living in this country illegally believe about a census count?

we won't even know if they are illegal. we'll just know that hey aren't citizens. and that will lead to rampant under-reporting, especially here in texas, where the non-citizen hispanic community has a rightful fear of what reprisal the executive branch will take against them, given stephen miller's penchant for separating families and deporting people who are actually here properly and legally.

it's beyond clear what the intent is for the administration. and it's going to result in under-reporting. 

[TxTower 684]

we won't even know if they are illegal. we'll just know that hey aren't citizens. and that will lead to rampant under-reporting, especially here in texas, where the non-citizen hispanic community has a rightful fear of what reprisal the executive branch will take against them, given stephen miller's penchant for separating families and deporting people who are actually here properly and legally.
it's beyond clear what the intent is for the administration. and it's going to result in under-reporting. 

Thanks for the thoughtful response Hayden.
I do realize there is the possibility that my beloved Texas could suffer in terms of representation and funding due to under reporting of non-citizens but as you said they can still fill it out without even answering the question. I still question fundamentally if the purpose of the census is used to determine representation and funding for our citizens, why it should extend to non-citizens?

If the only real non-political answer is “well they’re here so we just have to deal with it” that to me anyways is disappointing.

[David Dennison 19440]

Just now, TxTower said:

Thanks for the thoughtful response Hayden.
I do realize there is the possibility that my beloved Texas could suffer in terms of representation and funding due to under reporting of non-citizens but as you said they can still fill it out without even answering the question. I still question fundamentally if the purpose of the census is used to determine representation and funding for our citizens, why it should extend to non-citizens?

If the only real non-political answer is “well they’re here so we just have to deal with it” that to me anyways is disappointing.

Because representation and funding is not limited to American citizens.

[horncyclist 1391]

we won't even know if they are illegal. we'll just know that hey aren't citizens. and that will lead to rampant under-reporting, especially here in texas, where the non-citizen hispanic community has a rightful fear of what reprisal the executive branch will take against them, given stephen miller's penchant for separating families and deporting people who are actually here properly and legally.
it's beyond clear what the intent is for the administration. and it's going to result in under-reporting. 

That's a good point. It's not going to result in just an undercount of illegals, it'll also undercount citizens and legal permanent residents. An easy example, a household with an undocumented head and citizen children or other relatives who avoids responding . That's setting aside that the Constitution calls for a count of persons, regardless of immigration status.

[TwiceHorn 31984]

2 minutes ago, David Dennison said:

Because representation and funding is not limited to American citizens.

Ironically because of slave states.