The oral arguments the Supreme Court will hear Tuesday will be more decorous than the gusts of judicial testiness that blew the case up to the nation’s highest tribunal. The case, which raises arcane questions of administrative law but could have widely radiating political and policy consequences, comes from the Enlightenment mentality of the nation’s Founders, and involves this question: Does it matter that a conspicuously unenlightened member of the president’s cabinet lied in sworn testimony about why he made a decision that he arguably has the statutory power to make?
Because America’s 18th century Founders were rational, empirical, inquisitive pursuers of evidence-based improvement, they placed in the Constitution’s second section after the preamble a requirement for a census. And the 14th Amendment stipulates the required actual enumeration, every 10 years, of “the whole number” of persons residing in the country. From 1820 (when Congress wanted “foreigners not naturalized” to be counted) through 1950, the census almost always included a citizenship question, and in 2018 Commerce Secretary Wilbur Ross decided that the 2020 “short-form” questionnaire, the one that goes to every household, should include one. Ross has testified that he was “responding solely” to a Justice Department request for the question to provide data helpful to enforcement of the Voting Rights Act of 1965.
A federal district judge called this Ross rationale “pretextual” because Ross was justifying a decision “already made for other reasons.” This was a polite but still stinging way of saying Ross lied.
Ross also testified that he was “not aware” of any discussions of the citizenship questions between Commerce and the White House. But after 18 states, 15 municipalities and various immigration advocacy groups sued, he acknowledged meeting early in 2017 with then-presidential adviser Stephen Bannon.
