Department of Commerce v. New York (18-966)

argument 18-966

Department of Commerce v. New York

Supreme Court of the United States 1h 22m 7 speakers 8 chapters transcribed 7 days ago official recording ↗

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What is the historical background of the citizenship question on the Census?

John G. Roberts 0:00

We'll hear argument this morning in case eighteen nine sixty six, the Department of Commerce

General Francisco 0:05

versus New York. General Francisco. Mr Chief Justice, and may it please the Court. In march twenty eighteen, Secretary Ross reinstated a citizenship question that has been asked as part of the census in one form or another for nearly two hundred years. The district court's invalidation of that decision was wrong.

Elena Kagan 0:26

It has not been a part of the survey, which is where he reinstated it. since nineteen fifty. And for sixty five years. Every secretary of the Department of Commerce Every our statistician. including this Secretary statistician, recommended against adding the question So it may be that two hundred years of asking a citizenship question in other forms may be true. But not on the short survey. That is what is at issue.

General Francisco 0:59

Well but Your Honor, it has been part of the census for the better part of two hundred years, initially as part of the overall census itself that went to all individuals.

Elena Kagan 1:14

Everybody said don't add it.

General Francisco 1:15

Uh no, Your Honor, because in fact it was included in the long form census and

Elena Kagan 1:20

that's the whole issue. It could have been c it still included or could have been included in the ACS form, which is still being done. And that is being done in every first, third, and fifth year.

General Francisco 1:30

Yes, Your Honor. But it has been part of the census in one form or another for a very long period of time. The question, therefore, is two things. First, uh we think that the respondents' claims are not justiciable because their injuries aren't fairly attributable to the government or subject to APA review. And secondly, the Secretary acted well within his discretion. when he determined that reinstating the citizenship question would provide the best evidence of citizenship.

Sonia Sotomayor 2:00

Why was the citizenship question dropped. in nineteen sixty. and remained off. for all the decades after that. What was the reason for dropping it?

General Francisco 2:12

Uh, Your Honor, in nineteen sixty it didn't appear in anything and it was moved on to the American Community Survey. That was part of an overall movement of most of the d uh demographic I'm sorry, onto the long form census, not the American Community Survey. And that was part of a larger process that moved a large number of demographic questions off of the short form and onto the long form. We no longer have a long form, so then the question is do you reinstate the long form. Or do you in fact move it back onto the short form census and was eminently?

Sonia Sotomayor 2:46

Why it was dropped?

General Francisco 2:47

Well, they generally wanted to move all of the demographic questions on to the long form. We no longer have a long form, and the problems with using the American Community Survey are well known.

Sonia Sotomayor 3:04

uh to the effect that the Census Bureau found that Putting it on the short form. uh would depress the count of non citizens, nothing like that.

General Francisco 3:15

Well sure, Your Honor, but that is because they thought that, along with all of the other demographic questions in the census, had an overall impact of uh on on overall census accuracy. And that underscores why we don't think this is really subject to judicial review. Because really what you are saying is that uh congru uh courts would have to review every question on the long form to determine if the informational value of the question outweighed the impact on census accuracy. Because at the end of the day, if you add any particular question onto the census, you're always trading off information and accuracy. And 141A doesn't provide courts with a basis for evaluating that determination. So that's why we think this isn't subject to APA review at all, but we also think that the respondents don't have standing here.

General Francisco 4:03

Because they are injured if and only if, first you have third party action, secondly you have third party action that's illegal, and third, that third party action is based on speculation that the government will itself violate.

John G. Roberts 4:23

often said do not assume illegal behavior in establishing standing. But is that simply predictive? In other words, we doubt people are going to engage on a regular basis in illegal behavior and therefore we don't think their injury is is uh