Meteor Blades posted a story today about the Supreme Court’s decision to hear the Census Case (Department of Commerce v. New York).
Oddly, I had to dig up WaPo’s story on the Supreme Court’s decision to hear the case throughWaPo’s search function. At least as of 8:00 PST, this article was not posted on WaPo’s front page or listed in any index I could find. I am at a loss. It is a remarkably important story. I wanted to look at this case a little more closely.
First, background. From the WaPo story:
The Supreme Court added a politically explosive case to its docket Friday, agreeing to decide by the end of June whether the Trump administration can add a question about citizenship to the 2020 Census form sent to every American household.
The census hasn’t asked the question of each household since 1950, and a federal judge [Judge Furman] last month stopped the Commerce Department from adding it to the upcoming count. He questioned the motives of Commerce Secretary Wilbur Ross and said the secretary broke a “veritable smorgasbord” of federal rules by overriding the advice of career officials.
But, fortunately,
[Judge] Furman, and the states challenging Ross’s decision, said Congress has placed restrictions on what kind of information the secretary may seek, and the process for implementing it.
And then the WaPo article ends with this troubling history (my comments underlined; emphasis added by me):
The issue already has divided the court to some extent.
The challengers had wanted to depose Ross about his reasons for adding the question, and Furman had agreed. But the administration went to the Supreme Court for a stay of that decision, [and astonishingly—almost like Gore v. Bush astonishingly--the effing Supreme Court intervened in an active federal district trial in the absence of interlocutory appeal] and the justices said the Cabinet secretary could not be questioned.
Huh? Five justices said the Grinch who Stole Census is off-limits in a trial in which his integrity goes to its core? Again, huh?
Justices Clarence Thomas and Neil M. Gorsuch would have stopped the trial and not allowed questioning of other officials. Gorsuch said there was no reason to doubt Ross’s motives.
Are you effing schitting me? Can you write legal opinions with a straight face, Mister Justice? No reason to doubt the words of a lifelong grifter, nope, but plenty of reason to doubt the plain facts in black and white that Wilburrr lied to Congress to conceal his motives. No No No sayeth Thomas and Gorsuch, we must stop not just this questioning but the trial itself or the truth might erupt! Is that the aroma of Gore v. Bush I smell?
Okay, and then I came into this gem from the Census Department (as above, my comments underlined; emphasis added by me):
Census in the Constitution
Why Jefferson, Madison and the Founders Enshrined the Census in our Constitution. The U.S. Constitution empowers the Congress to carry out the census in "such manner as they shall by Law direct" (Article I, Section 2). The Founders of our fledgling nation had a bold and ambitious plan to empower the people over their new government. The plan was to count every person living in the newly created United States of America (including tax-paying Native Americans, three-fifths of the slaves, and 100% of the free [arguably white] people, including indentured servants, non-voting women and children and untold thousands of non-citizens), and to use that count to determine representation in the Congress.
Enshrining this invention in our Constitution marked a turning point in world history. Wowee. Previously censuses had been used mainly to tax or confiscate property or to conscript youth into military service. Now we can screw blue states and our political opponents, too. The genius of the Founders was taking a tool of government and making it a tool of political empowerment for the governed over their government.
But, hey, now it’s time to flip the table—the genius of the Republican Party is now they are making the census a tool of political empowerment for the government over their governed.
They accomplished that goal in 1790 and our country has every 10 years since then, well, so far. In 1954, Congress codified earlier census acts and all other statutes authorizing the decennial census as Title 13, U.S. Code. Title 13, U.S. Code, does not specify which subjects or questions are to be included in the decennial census. However, it does require the Census Bureau to notify Congress of general census subjects to be addressed 3 years before the decennial census and the actual questions to be asked 2 years before the decennial census.
Huh? Who knew? And it is really an old, old stupid provision empowering the Congress to carry out the census in "such manner as they shall by Law direct" (Article I, Section 2). President Trump has decided that the Constitution is just incorrect on this point—maybe a typo or scripto, whatever--and that 1954 law is pretty old, too, so it doesn’t apply anymore.
Questions beyond a simple count are Constitutional
It is constitutional to include questions in the decennial census beyond those concerning a simple count of the number of people. On numerous occasions, the courts have said the Constitution gives Congress the authority to collect statistics in the census. As early as 1870, the Supreme Court characterized as unquestionable the power of Congress to require both an enumeration and the collection of statistics in the census. The Legal Tender Cases, Tex.1870; 12 Wall., U.S., 457, 536, 20 L.Ed. 287. In 1901, a District Court said the Constitution's census clause (Art. 1, Sec. 2, Clause 3) is not limited to a headcount of the population and "does not prohibit the gathering of other statistics, if 'necessary and proper,' for the intelligent exercise of other powers enumerated in the constitution, and in such case there could be no objection to acquiring this information through the same machinery by which the population is enumerated." United States v. Moriarity, 106 F. 886, 891 (S.D.N.Y.1901).
So, I read this paragraph thrice, and I keep coming back to the same thing. It’s not the effing President or Executive Department who or which determines which questions are asked in the decennial questionnaire—it’s the Congress.
* * *
[Discussion of various other leading cases on other topics omitted]
These decisions are consistent with the Supreme Court's recent description of the census as the "linchpin of the federal statistical system … collecting data on the characteristics of individuals, households, and housing units throughout the country." Dept. of Commerce v. U.S. House of Representatives, 525 U.S. 316, 341 (1999).
Mr. Chief Justice, we are counting on you.