Census Question Raises Constitutional Issues

With the recent Supreme Court ruling on the question on citizenship status in the 2020 Census, legal scholars of all ilks have weighed in. In a recent opinion column from Hugh Hewitt, Hewitt takes an interesting approach to the implications of the decision requiring the Department of Commerce to provide a more conclusive rationale for including the question in next year’s census. 

In an exchange with former 4th Circuit Court of Appeals Judge J. Michael Luttig, Hewitt and Luttig raise an interesting constitutional question

‘In a back-and-forth with me via email, Luttig wrote, “This constitutional moment is, in principle, for the Article II Executive, what it would be, in principle, for the Article I Legislature, were the President himself to draft legislation declaring war on behalf of the United States, purport to enact it and sign it into law, and immediately thereafter commit the United States to war through the launch of inter-continental ballistic warheads."

“As it would be, in same principle,” Luttig continued, “the constitutional moment for the Article III Judiciary were the Congress of the United States to have purported in legislative session to decide this very case that had been pending before the Supreme Court and, before the Supreme Court decided the case yesterday, forbade the President through congressional enactment from asking persons living in the United States whether they were or were not lawful citizens of the United States of America.”

So it is not merely “a single question on the 2020 census” decision. It is the question: To which branch does the Constitution commit which powers? Get that wrong, and the walls of separation are down, the checks don’t balance. It’s open season, one branch upon the other.’

Hewitt makes a compelling argument. The Census Bureau, part of the Department of Commerce, is an executive agency with executive power. Thus, the agency should be given the appropriate powers to conduct the Census as needed.

Attorneys David Rivkin and Gilson Gray argue that the citizenship question is necessary to comply with Section 2 of the 14th Amendment (emphasis added):

Section 2 of the 14th Amendment provides that if a state denies the franchise to anyone eligible to vote, its allotment of House seats shall be “reduced in the proportion which the number of such . . . citizens shall bear to the whole number of . . . citizens . . . in such state.” This language is absolute and mandatory. Compliance is impossible without counting how many citizens live in each state. . . .

Congress has dealt with suffrage-abridgement problems through other constitutional and statutory means, especially the Voting Rights Act. But that doesn’t change the constitutional obligation to obtain citizenship data. A future Congress could decide to rely on Section 2 to enforce voting rights . . . .

The president should issue an executive order stating that, to comply with the requirements of Section 2 of the 14th Amendment, the citizenship question will be added to the 2020 census. In addition, he can order the Commerce Department to undertake, on an emergency basis, a new Census Act rulemaking.

Separate from the constitutional arguments is the political question: As Democratic candidates push issues such as free healthcare for all, isn’t it vital for our Government to know who’s a citizen and who isn't?

‘Given this week’s Democratic debates, which included a near-unanimous agreement about extending Medicare to all (it is currently open only to of-age legal immigrants of five years legal residence), new questions on the census are actually compelled by the congressional budgeting process. 

The only Democratic debate participant to dissent from the proposed massive expansion of Medicare to legal residents not here five years or longer and to immigrants who are residing here without the permission of the federal government was former Maryland congressman John Delaney…it also underscores that if Congress is going to legislate this sort of expansion for a vast new group of immigrants, both legally resident but here less than five years and those without permission, Congress — and specifically the Congressional Budget Office — is going to need to know exactly how much the marginal cost of such expansions might be.’

As the rhetoric from Democrats continues to move toward undermining the benefits of citizenship, it is increasingly vital to make a distinction of exactly who benefits, and how they benefit. Free healthcare-for-all presents only one of these challenges; for the fiscal health of our nation, Congress and the Supreme Court must respect the Executive Branch's power to carry out its prescribed duties.