https://constitutioncenter.org/debate/podcasts/is-asking-about-citizenship-on-the-census-unconstitutional
Wolf: [00:12:23] Yeah, I think it's important to keep those legal questions at the forefront when we start asking about the evidence that exists regarding the undercounts. So let's take the APA first. The APA may seem as if it is kind of an obscure or kind of deep in the weeds technical, bureaucratic regulation, but it exists to serve a couple of important, key purposes, chief among them when Congress, who are our delegated representatives, in term delegates authority to make rules that govern our lives, the agencies, we expect the agencies to act in ways that are reasoned, reasonable, and transparent among other things in addition to adhering to other laws. So when the court is hearing an APA challenge, mainly what it's asking is, did the agency act in a way that seems reasonable in light of the information that was in front of the agency head at the time that the decision was made?
In this case, Secretary Ross was the ultimate decision maker in terms of whether to add a citizenship question. All of the information that was presented to Secretary Ross established that there would be, according to the studies conducted by the Census Bureau, and in addition to those studies, the sort of general knowledge that the Census Bureau builds up over the course of time about how to conduct a survey. I mean, ultimately, they are professional survey takers who have a deep, social scientific pedigree. All of that evidence that was assembled for Secretary Ross said that adding a citizenship question would lower response rates. There was no evidence on the other side suggesting that adding the question would not lower response rates or even improve response rates. I can't imagine a world in which it would improve response rates, but for argument's sake, there could have been information like that.
There wasn't. So when Secretary Ross decided to add the question, he was acting in defiance of all of the facts that were assembled in front of him. In other words, he acted contrary to fact and he acted contrary to logic. That's the sort of basis of the APA review. Now, there were conversations for instance at the court that well, what if there was this rationale or that rationale? But the fundamental point here is that when we're talking about APA review, we need to look at and scrutinize what Secretary Ross said was the basis for his decision at the time.
The Enumeration Clause claim, the basic idea is that the constitution requires Congress to conduct what's referred to as an actual enumeration every ten years. The Supreme Court over the course of time has developed case law to interpret what the Enumeration Clause requires and what sort of action now by the Commerce Secretary many years at the framing, the Congress itself ran the census. But over the course of time, the Census Bureau was created and it was shuffled under the Commerce Secretary, so now it's the Commerce Secretary. What the Commerce Secretary does has to bear, this is more or less a direct quote, “A reasonable relationship to the conduct of an actual enumeration.” So the basic claim in these cases under the enumeration clause is that the citizenship question cannot be constitution because it doesn't bear a reasonable relationship to an actual enumeration, and the underlying reason for that is because adding the question will degrade the accuracy of the enumeration rather than either enhance it or provide a neutral factor. Therefore, it contradicts the constitutional command.
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