Saturday, March 16, 2019

Supreme Court Adds Constitutional Question to Citizenship Case


On April 23rd, the Supreme Court will hear Oral Argument in the Challenge to the Decision to Reinstate a Question about Citizenship on the 2020 Census.

The Justices had originally Granted Review to Decide whether that Decision Violated Federal Laws Governing Administrative Agencies, but on March 15th, the Justices announced that they will also Consider whether the Decision Violates the Constitution.

The Justices’ Order adding the Constitutional Issue to the Case came Four days after U.S. Solicitor General Noel Francisco sent a Letter to Scott Harris, the Clerk of the Supreme Court.

The Letter informed Harris, and by extension the Justices, that a Federal District Court in California had Ruled that the Addition of the Citizenship Question Violates both Federal Administrative Laws and the Constitution’s Enumeration Clause, which Requires the “Actual Enumeration” of the U.S. Population every 10 years, to allow Congressional Representatives to be evenly Divided among the States.

Administrative Procedure Act

The Administrative Procedure Act (the “APA”) is a Federal Statute that Dictates how Federal Administrative Agencies can Create Regulations. The Act, enacted in 1946, also Outlines a Process for Federal Courts to Directly Review Decisions made by Administrative Agencies. The APA is tasked with providing Safeguards and Regulating the Roles and Powers of Governmental Agencies. According to the Attorney General’s Manual on the Administrative Procedure Act, the Purposes of the APA include:

- To ensure Agencies Inform the Public about their Organization, Procedures, and the Rules.
- To provide the Public with an Opportunity to Participate in the Process of Rulemaking by Commenting on the Change.
- To Establish Uniform Standards for Rulemaking and Adjudication.
- To Outline the Scope of Judicial Review.

The Congress is to receive Three Reports about the Census Changes but it looks like it only sent Two.

Enumeration Clause

The Enumeration Clause in the U.S. Constitution is also known as the Census Clause, found in Article 1, sections 1 & 2 of the Constitution, and reads as follows, “Representatives…shall be apportioned among several states…according to their respective numbers…the actual enumeration shall be made within three years and the first meeting of the Congress of the United States of America, and within every subsequent term of ten years in such manner as they shall by law direct.”

It is basically stating that the U.S. Conducts a Census every 10 years, and that the first One needed to be Conducted within Three years of the Creation of the aforementioned Article.

As with much of the Language in the U.S. Constitution, there are some things that are left open to Interpretation. For example: The Language, “…as they shall by law direct” raises the Question as to whether the Government needs to actually Count each and every Individual, or can an Estimate be used? There was apparently No Specific Discussion around this Issue at the First Continental Congress.

Is this only Applicable to the States that Comprise the United States of America, or does this allow apply to U.S. territories? The U.S. Government has Chosen to Apply the Census to U.S. Territories, as well, such as Puerto Rico and U.S. Virgin Islands, even though their Congressmen and Congresswomen are Not Permitted to Cast votes in the House of Representatives.

The only way to Finally Resolve whether the Federal Government can bring back the Citizenship Question, the Government stressed, is to have the Justices take up the Constitutional Issue too.

Otherwise, even if the Supreme Court were to Agree with the Federal Government that the Citizenship Question does Not Violate Federal Administrative Laws, Lower Courts could still rely on the Enumeration Clause to Block the Government from Including it.

With the June 2019 Deadline to Finalize the Census Questionnaire looming, the Government continued, the Best Course of Action would be for the Justices to Add the Constitutional Issue to the Oral Argument, which hails from a Federal District Court in New York.

That is exactly what the Justices Did, giving the Challengers, States, and Civil Rights Groups, led by New York, an extra 2,000 Words to Address the Issue in their Briefs, which are Due on April 1st.

The Justices gave the Federal Government, which had already addressed the Enumeration Clause in its Opening Brief, an extra 1,000 Words in its Reply Brief.










NYC Wins When Everyone Can Vote! Michael H. Drucker
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