Supreme Court Review

Article Title

The Inside-Out Constitution: Department of Commerce v New York


On June 27, 2019, the U.S. Supreme Court issued its decision in Department of Commerce v New York. The case involved a challenge to the Commerce Department’s proposed addition of a citizenship question to the 2020 census. The matter drew significant public attention because it highlighted the potential power of executive branch officials to manipulate the census to enhance the electoral power of one racial group at the expense of others, and it raised the question of whether the Court was willing to stop this. Many observers believed that the Court would not interfere. In a move that surprised many, however, Chief Justice John Roberts voted with the Court’s more liberal Justices in holding that the administration’s stated reason for its decision to include the question was pretextual in violation of the Administrative Procedures Act. The plaintiffs’ narrow victory in this case was hard fought and politically significant. Most notably, it kept the administration from adding the citizenship question to the upcoming census. The outcome might also be read to hint that there is at least some small possibility of success for litigants in Department of Homeland Security v Regents of the University of California, the case challenging the Trump administration’s rescission of the Deferred Action for Childhood Arrivals program (DACA). After all, the claims of the DACA plaintiffs rest, in part, on the same sort of argument about the administration’s reliance on a pretextual rationale for its actions. More generally, the Census 2020 Case might be read to signal a hopeful break from a course of judicial deference to the Trump administration in its review of policies that discriminate against racial and religious minorities. A closer look at the Court’s decision in the census case, however, suggests far less reason for optimism for those who look to the courts to protect historically marginalized groups from government oppression.

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