Census Question and the Supreme Court

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WASHINGTON — For all his talk about judges not being political actors beholden to a president, Chief Justice John Roberts Jr. and his conservative colleagues on the Supreme Court may hand President Trump one of the biggest political victories of his administration: the addition of a citizenship question to the 2020 census.

It also happens to be a coup with profound implications for American democracy.

At issue in Department of Commerce v. New York, which the justices considered on Tuesday in an 80-minute hearing, is not the legality of inquiring on the census form about people’s citizenship status. As Justice Neil Gorsuch put it, “It’s not like anybody in the room is suggesting the question is improper to ask in some way, shape or form.”

Instead, the case is about administrative process. Did Wilbur Ross, the commerce secretary, follow the proper procedures set out in federal law when he sought to include the question?

That shouldn’t be a difficult question to answer. Three judges so far — including one in New York, whose ruling is now under review at the Supreme Court — have said that Mr. Ross broke federal rules when he set out to include the citizenship question. Federal courts generally defer to government agencies and officials, unless those agencies do things that are determined to be arbitrary or capricious — as has been common in the Trump era.

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