Posted on July 1, 2019

Unanimous Supreme Court: It’s ‘Predictable’ That Noncitizens Will Act ‘Unlawfully’

Terence P. Jeffrey, CNS News, June 27, 2019

On its way to ruling by a 5-4 majority that the Secretary of Commerce improperly decided to include a citizenship question in the 2020 Census, the Supreme Court unanimously concluded that states had legal standing to sue the federal government over this issue based on the court’s conclusion that it is “predictable” that noncitizens will act “unlawfully” by declining to fill out the Census questionnaire.

The court explained its conclusion on this question in Part II of its opinion, which all nine justices joined.

“To have standing,” Chief Justice John Roberts wrote in this unanimously-joined part of his opinion in Department of Commerce v. New York, “a plaintiff must present an injury that is concrete, particularized, and actual or imminent; fairly traceable to the defendant’s challenged behavior; and likely to be redressed by a favorable ruling.”


“Respondents assert a number of injuries — diminishment of political representation, loss of federal funds, degradation of census data, and diversion of resources — all of which turn on their expectation that reinstating a citizenship question will depress the census response rate and lead to an inaccurate population count,” the Supreme Court said.

In its brief to the court, the federal government had argued that these injuries that states said they would suffer would result not from any action taken by the federal government itself but from the actions of noncitizens who choose — illegally — not to participate in the Census.

“As the government has explained,” Solicitor General Noel Francisco wrote in his brief to the court, “respondents do not have standing because their alleged injuries will materialize only if unidentified third parties react to the citizenship question by illegally refusing to fully answer and return the census questionnaire in violation of federal law, see 13 U.S.C. 221.”

“Accordingly,” Solicitor General Francisco continued, “respondents’ alleged injuries would not be ‘fairly attributable’ to the Secretary’s decision to reinstate the citizenship question to the decennial census; they would be attributable to the unlawful decision of these independent third parties.”


“The government contends, however, that any harm to respondents [the states] is not fairly traceable to the Secretary’s decision, because such harm depends on the independent action of third parties choosing to violate their legal duty to respond to the census,” said the court.

“The chain of causation is made even more tenuous, the government argues, by the fact that such intervening, unlawful third-party action would be motivated by unfounded fears that the federal government will itself break the law by using noncitizens’ answers against them for law enforcement purposes,” the court continued.


“Respondents theory of standing thus does not rest on mere speculation about the decisions of third parties; it relies instead on the predictable effect of government action on the decision of third parties,” said Roberts for the unanimous court.

In Part V of the decision, the court ruled 5 to 4 — with Justices Ruth Bader Ginsburg, Elena Kagan, Stephen Breyer and Sonia Sotomayor joining Chief Justice Roberts — that the citizenship question should be thrown out. {snip}

The five justices came to their conclusion because they did not like the manner in which they perceived the Secretary came to this conclusion.


“For the first time ever,” wrote Thomas, “the court invalidates an agency action solely because it questions the sincerity of the agency’s otherwise adequate rationale.”


But, said Alito: “Whether to put a citizenship question on the 2020 census questionnaire is a question that is committed by law to the discretion of the Secretary of Commerce and is therefore exempt from APA review.”