Census Citizenship Question Heads to the Supreme Court Due to Resistance Judges and Lawfare

Detail from "The Bench" by William Hogarth (1758) judge, judges, court, courts

One would think that it would be uncontroversial for a nation to have an interest in the number of its citizens. But, if counting citizens means that states with massive numbers of illegals protected by sanctuary cities might lose some federal funding, then we have a constitutional crisis.


Yesterday, for the second time, a federal judge has ruled it illegal for the federal government to ask citizens their citizenship on the 2020 Census despite the fact that it was a standard question from 1890 through 1950. Both decisions have been agenda driven and bizarre in the extreme. The first decision, coming from Obama-appointed judge Jesse Furman, who just happens to be the brother of Obama’s Economics Adviser, laid out a parade of horribles:

Judge Furman concluded that if the census form asked everyone to state their citizenship, the actual effect would be that “hundreds of thousands – if not millions – of people will go uncounted. The result will not only be a decrease in the quality of census data…but likely a net differential undercount…[of] people living in households containing noncitizens and Hispanics.”

Those challenging a citizenship question argued that non-citizens and Hispanics will not fill out the census form at all, because of fear that they or relatives would risk being deported.

The problem of under-counting, the judge decided, could not be cured by follow-up inquiries by census-takers. The Census Bureau’s own data from past countings, the judge said, showed that however extensive follow-up efforts might be, they do not overcome the decline in self-responses.


This isn’t law. This is an activist judge imposing his views of what will happen (How does he know any of this? Does he have a fortune-telling degree?) as a reason for fighting a policy he disagrees with.

There was a second decision yesterday following the same form. An Obama-appointed federal judge, Richard Seeborg, in California declared that citizenship was not merely improper but unconstitutional.

Judge Richard Seeborg said the commerce secretary’s decision to add the question was arbitrary and capricious and would violate a constitutional requirement that the census count everyone in the country. Evidence showed the question would result a significant undercount of non-citizens and Latinos, the judge said.

This case is now headed to the Supreme Court. In February, the US government asked the Supreme Court to dispense with review of the question by the Second Circuit and hear the case because of the time constraints upon the Census Bureau and the Court agreed. Presumably, this case will be rolled into that hearing.


What is at stake here is more than a single census question. It is actually a fight to determine who runs the Executive Branch. Do agencies report to their secretaries or administrators? Or do they report to random black-robed partisan activists trying to further their political preferences? There is no requirement that agencies act wisely or competently and there is no authority for a judge to impose his decision over a legal decision by a cabinet secretary. The Executive is accountable to the people and to Congress.

Moreover, what makes these decisions so bizarre is that they are based on nothing more than the judges in question simply not liking the choice made by the Census Bureau. If a mailed questionnaire can constitutionally enumerate the population, it makes no difference whatsoever what the questions are. If someone lies on the citizenship question, no one knows. If someone doesn’t fill out that question, there is no legal penalty associated with that act.

This is simply lawfare being waged by #Resistance judges and it needs to stop. Had Paul Ryan possessed anything that could be mistaken for huevos at the distance of a country mile, he would have started impeaching judges who were using pseudo-legal reasoning to simply stymie President Trump’s administration (the assclowns who ruled on the “travel ban” come immediately to mind). While they would not have been removed from office, they would have had to endure the expense, the inconvenience, and the odium that their actions deserved.


Like what you see? Then visit my story archive.

I’m on Facebook. Drop by and join the fun there.


Join the conversation as a VIP Member

Trending on RedState Videos