The inclusion of the citizenship question on the 2020 census remains both uncertain and controversial. On January 15, Judge Jesse M. Furman of the United States District Court in Manhattan issued an opinion blocking the Commerce Department from including a citizenship question. The opinion states that Secretary Ross violated the Administrative Procedure Act (APA) in various ways, including making an “arbitrary” and “capricious” decision to include the citizenship question. The opinion also posits that Secretary Ross violated the APA by failing to justify departures from past policies and practices, and failing to notify Congress of census subjects three years in advance. Judge Furman further believed that Secretary Ross' reasoning for including the citizenship question was "pretextual." However, he did not find that the plaintiffs carried their burden of proof showing that Ross' decision was pretext for impermissible discrimination.
Solicitor General Noel Francisco said on January 22 that the Department of Justice plans to file a petition for writ of certiorari before judgment with a proposal for expedited briefing to allow for oral argument and decision by the end of June, so the census questions can be printed on time. Francisco believes the issue is of such "imperative public importance" that it justifies altering the normal procedure of the Supreme Court to wait until the federal appeals court has had a chance to opine on the case. John Baker joins us to discuss the Solicitor General’s petition, and the likely future of the citizenship question.
Featuring:
Dr. John S. Baker, Jr., Visiting Professor, Georgetown Law



Teleforum calls are open to all dues paying members of the Federalist Society. To become a member, sign up on the website. As a member, you should receive email announcements of upcoming Teleforum calls which contain the conference call phone number. If you are not receiving those email announcements, please contact us at 202-822-8138.