EPA, F. See United States v. Armstrong, U. There is no basis for that assertion. Nothing in the administrative record —or for that matter in the extra-record evidence— supports the contention that DOJ did not independently analyze the issue and independently conclude that census citizenship data would improve VRA enforcement for the four reasons identified in its letter.
In sum, the Government demurred from contending, as do Dean Cass and Mr. In retrospect, constitutionalists should have read the signs of the times and prepared themselves for New York. But even aside from that, other signs pointed to trouble for the Government. Township of Scott , the Chief Justice subtly admonished footnote 5 the Solicitor General against pressing in the Supreme Court positions not advanced in lower courts.
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Fourteen years into his tenure, litigants ought to realize, for better or worse, that this Chief Justice is more committed than some to orderly proceedings and candor in litigation. Second , the Government appears to have given insufficient attention to framing the issue. Third , the Government in all likelihood should have invoked the United States v.
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Morgan precedents. As noted above, those New Deal-era rulings were highlighted by Ronald Cass and Christopher DeMuth; they culminate in a respected opinion by Justice Felix Frankfurter: and they are cited to this day, including in the administrative-law casebook co-authored by Justice Breyer. Finally , the Government should have recognized that the Justices likely appreciate that the Trump Administration is committed to drawing distinctions that make a real difference between citizens and non-citizens.
In response to this recognition, the Government might have emphasized the helpful fact that citizenship is a status distinction approved by and enshrined in our Constitution. A better alternative to sole reliance on the benefits of collecting Voting Rights Act data would have been to say, straightforwardly, that the Secretary was determined to ask a customary question, included in practically every census for more than years, about a status distinction mentioned in many constitutional provisions, including, most importantly, the Citizenship Clause of the Fourteenth Amendment.
Tellingly, in all, or at least most all, other cases where the Constitution mentions statuses — slavery; titles of nobility; willingness to take religious oaths; attainders; corruption of blood — it is for purposes of outlawing them. To its credit, the Government came close principal brief, page 28 to making this better sort of argument:. Indeed, was the first time in years that a question about citizenship or birthplace did not appear on any decennial census form.
But while this passage adds color, it fails to advance a defensible litigation position. It suggests, if anything, that the Court ought to rule American administrative actions in- and out-of-bounds based on what the United Nations approves and other countries do, or else based on practices followed in the more distant — as opposed to more recent — American past.
Good luck with that. Now consider these slight modifications under the heading of what might have been:. Indeed, only once in more than years since ratification of the Fourteenth Amendment, and entrenchment of its Citizenship Clause, has a question about citizenship or birthplace not appeared on any decennial census form. Even the United Nations—never the keenest friend of member-state sovereignty—recommends this unexceptionable practice.
Under this alternative scenario, the Government might have assigned responsibility for crafting a decisional recommendation — and only a recommendation — to a panel of high-level, interagency decisionmakers untainted by the original decision.
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On this understanding, and working in complete isolation from the Secretary and everyone else who participated in the initial decision, the panel could have crafted an advisory recommendation, which the Secretary might then have accepted or rejected in a short, prompt, written memorandum. Undoubtedly, it would have distinguished between immigration and naturalization and have observed that an effective naturalization process, under the express authority of Article I, permits and promotes higher levels of immigration.
Likely, this civics lesson would not have omitted listing the constitutional references to citizenship; also likely, it would have stressed that citizenship is constitutionally approved, in contrast to other statuses that are constitutionally prohibited, even demonized. Finally, a pro-tip enhancement to the process would have the advisory panel make identical and simultaneous up-or-down recommendations to both Secretary Ross and a second official who was uninvolved with the earlier proceedings.
True, running parallel processes would risk fatally conflicting decisions. But assuming the type of civics lesson described above could be composed, both decision-makers could be expected, independently, to arrive at the same decisional destination. In that event, the upshot would be, not fatal conflict, but mutual reinforcement. By the same token, appellate litigators are likely to overlook that the cleanest path to victory in the wake of the decision lay in a simple civics lesson, not in complex legal reasoning.
Because of these five victories, the Government could have convened an untainted advisory panel—with no expertise in census statutes or censuses—solely for purposes of assessing whether Secretary Ross, a businessman sworn to uphold the Constitution, had justifiable constitutional intuitions for including a citizenship question in the census.
The Government lawyers in New York prevailed on five merits arguments; fought a sixth to a near draw; met demanding deadlines; and demonstrated enviable mastery of, if not all, then almost all aspects of a brutally complicated and expedited case. They are to be congratulated.
The Census and the Constitution
That said, the question of the hour is what lessons will be gleaned from the ups and downs of New York , as a litigation swell continues to break against this Administration. Robert R. Gasaway is a Washington D. About the Author. A powerful and impressive analysis. And, indeed, with some perspective and wisdom.
Still, how does Mr. Gasaway account for the dissenting opinion in the case? Are the four dissenters simply unfamiliar with the nuances of Supreme Court litigation?
Sibelious, or so it looks to a non-Supreme Court litigator. One has to wonder if the unwise concession that Mr. The Atlas Society. The Michigan Law Review Association. Perspectives on Politics.
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