ATTORNEY GENERAL/CENSUS/CITIZENSHIP/COMMERCE/SUPREME COURT/TRUMP EXECUTIVE ORDERS: “By the authority vested in me as President by the Constitution and the laws of the United States of America, it is hereby ordered as follows…
In Department of Commerce v. New York, No. 18-966 (June 27, 2019), the Supreme Court held that the Department of Commerce (Department) may, as a general matter, lawfully include a question inquiring about citizenship status on the decennial census and, more specifically, declined to hold that the Secretary of Commerce’s decision to include such a question on the 2020 decennial census was ‘substantively invalid.’ That ruling was not surprising, given that every decennial census from 1820 to 2000 (with the single exception of 1840) asked at least some respondents about their citizenship status or place of birth. In addition, the Census Bureau has inquired since 2005 about citizenship on the American Community Survey — a separate questionnaire sent annually to about 2.5 percent of households.
The Court determined, however, that the explanation the Department had provided for including such a question on the census was, in the circumstances of that case, insufficient to support the Department’s decision. I disagree with the Court’s ruling, because I believe that the Department’s decision was fully supported by the rationale presented on the record before the Supreme Court.
The Court’s ruling, however, has now made it impossible, as a practical matter, to include a citizenship question on the 2020 decennial census questionnaire. After examining every possible alternative, the Attorney General and the Secretary of Commerce have informed me that the logistics and timing for carrying out the census, combined with delays from continuing litigation, leave no practical mechanism for including the question on the 2020 decennial census.
Nevertheless, we shall ensure that accurate citizenship data is compiled in connection with the census by other means. To achieve that goal, I have determined that it is imperative that all executive departments and agencies (agencies) provide the Department the maximum assistance permissible, consistent with law, in determining the number of citizens and non-citizens in the country, including by providing any access that the Department may request to administrative records that may be useful in accomplishing that objective. When the Secretary of Commerce decided to include the citizenship question on the census, he determined that such a question, in combination with administrative records, would provide the most accurate and complete data. At that time, the Census Bureau had determined based on experience that administrative records to which it had access would enable it to determine citizenship status for approximately 90 percent of the population. At that point, the benefits of using administrative records were limited because the Department had not yet been able to access several additional important sets of records with critical information on citizenship. Under the Secretary of Commerce’s decision memorandum directing the Census Bureau ‘to further enhance its administrative record data sets’ and ‘to obtain as many additional Federal and state administrative records as possible,’ the Department has sought access to several such sets of records maintained by other agencies, but it remains in negotiations to secure access. The executive action I am taking today will ensure that the Department will have access to all available records in time for use in conjunction with the census.
Therefore, to eliminate delays and uncertainty, and to resolve any doubt about the duty of agencies to share data promptly with the Department, I am hereby ordering all agencies to share information requested by the Department to the maximum extent permissible under law…
I am also ordering the establishment of an interagency working group to improve access to administrative records, with a goal of making available to the Department administrative records showing citizenship data for 100 percent of the population. And I am ordering the Secretary of Commerce to consider mechanisms for ensuring that the Department’s existing data-gathering efforts expand the collection of citizenship data in the future.
Finally, I am directing the Department to strengthen its efforts, consistent with law, to obtain State administrative records concerning citizenship.”
-Donald Trump, “Executive Order on Collecting Information about Citizenship Status in Connection with the Decennial Census,” whitehouse.gov, July 11, 2019
[Note: Read the full Executive Order signed by Donald Trump.]