The Commerce Department cannot include a citizenship question in the census – at least for now – according to the Supreme Court.  In Department of Commerce et al. v. New York et al., the Court, in a 5-4 decision written by Chief Justice Roberts, said the question could not be in the census because the “sole reason” Commerce Secretary Wilbur Ross gave for his decision to include it – enforcement of the Voting Rights Act – seemed contrived. Justice Roberts wrote: “[a]ltogether, the evidence tells a story that does not match the explanation the secretary gave for his decision.” The Commerce Department will have to provide further information for the District Court to review before a final decision is made.

The Supreme Court’s decision was complex and layered, with justices agreeing or disagreeing with different parts of the opinion, but ultimately the case turned on Ross’ explanation. The Court held there was no violation of the Enumeration Clause of the U.S. Constitution and there was no violation of the Census Act. But the Court held that the Commerce Department’s decision was reviewable under the Administrative Procedures Act (APA) and that for there to be meaningful review the agency must “disclose the basis” of its decision. This could include assessing the mental processes of the decision-makers.

The Court allowed that decision-makers can act on preferences they may hold but the “genuine” reasons (not pretexts) must be presented so they can be “scrutinized by the courts and the interested public.”

Rather than seeking to appeal the case to the Second Circuit, the Commerce Department had asked the Supreme Court for a direct review because the Census Bureau needed to make its June 30^th “go to print” deadline. If that deadline holds, the Bureau will not be able to include the citizenship question in the 2020 Census – even if the agency ultimately prevails. President Donald Trump tweeted his disapproval of the decision from Japan and is asking whether the census can be delayed until there is a “final and decisive decision . . .”

Federal district courts in New York, California and Maryland all held that the addition of the citizenship question violated the APA among other laws. Litigation is continuing and new evidence has come into play. The Maryland district court will consider whether documents from a now-deceased Republican operative prove that the Commerce Department planned to add the citizenship question because doing so would lead to an undercount that would advantage Republicans.