High Court Likely to Allow Trump Citizenship Question

Administration's addition of a citizenship question to the census. In Bloomberg New Supreme Court reporter of Greg Store was there and he joins me, now, so, Greg, this is the case that has been talked about more than probably just about any other set. The scene, was it crowded? Were their protests? I didn't see any protest June, but it was certainly proud of very long lines outside the court to get in and claim one of the few seats

for it. The Court, as you know, generally does not release the audio of an argument on the same day and again said it wouldn't do it this time. So the only way you get to or what what was happening today is if you had one of those a few hundred seats in the courtroom. So what was the main legal question as far as the justices were concerned.

There are a multitude of legal questions in the case, but the core of it seemed to be whether under the federal law that that governed administrative agencies, the Commerce Secretary Wilbur Ross acted in a in a reasonable manner by saying, I reject the recommendation of the Census Bureau.

The Census Bureau said, if we add a question about citizenship that will reduce participation, it will lessen the accuracy of the responses we do get, and we're actually better able to figure out how many people are are in the country and whether they are citizens through other means. The Commerce Secretary rejected that recommendation and that analysis, and the question was whether the core question was really whether

he had any real basis for doing so. So there were three Federal Court judges who heard this case, and all three ruled against the administration, and some were very critical of Commerce Secretary Ross's actions. Did their opinions count for anything in the arguments? Well, it's certainly there with the court's liberals. So the case that is before the

Court is one that came out of New York. UH several hundred page opinion by Judge Jesse Furman there, who said that Ross committed a quote veritable smortgage board violations of the Administrative Procedure Act. You know, there were certainly a lot of questions for the Trump administration's lawyer, Solicitor General Noel Francisco about the things that we're in Furman's opinion, but there was really no evidence that had had any impact on the likely swing justices in the case. Who

are Chief Justice Roberts and Justice Kavanaugh? What did you see from the justice's questions as to which way they're leaning? So, as I alluded to, there was really no indication that either Roberts or Kavanaugh were especially bothered by all these violations that Judge Furman found, basically to set the scene a little more, there's a lot of evidence in the record.

What Judge Furman found was that Secretary Ross really wanted to put as citizenship question on the census and was sort of shopping around through the Homeland Security Department of Justice Department for some entity that would ask formally ask the Commerce Department to put a question on there, and eventually got the Justice Department to say, hey, it would

help us enforce the Voting Rights Act. And there's no indication that that either roberts or Kavanaugh were bothered by that process or agreed with Judge Furman that those purported reasons that Ross gave for putting the question on there were a pretext. They seem perfectly comfortable letting the administration ask the question. So then does that indicate a five

for split in the administration's favor? You know, I'm often wrong when I predicted arguments will come out a lot sometimes right, this one sure felt like a five to four. It's hard to say. We already have some evidence from some preliminary rulings on some earlier questions that there will be a split. The more conservative justices have staked out some ground and made pretty clear they don't think this case has any merit to it based on the questions.

It's awfully hard to see how they are not joined by Robertson and Kavanaugh to make a five four decision. So then would that flip the Court's usual divide when it comes to administrative agencies and how much weight they

give them. Yeah, it's sort of would You know, We've been talking a lot about, especially with Kavanaugh and Neil Gorser's joining the Court about how they are justices who tend to be skeptical of giving too much difference to administrative agencies like the e PA, for example, and so there's an expectation this court will limit the power of administrative agencies in those contexts. Here, however, Justice Kavanaugh, for example, said that the statute that governs the taking of the

senses gives huge discretion to the Commerce Secretary. So in this context, it didn't seem like those limits on administrative agencies that they might apply elsewhere. We're going to carry the day here. So this is the court's first look at a min inistration initiative since the Justice upheld President Trump's travel band last year. Are there any implications beyond the census question here, for example, two questions of presidential power?

You know, there could be it could be a case that's very limited to the census, but certainly there It does suggest for those who are critical the Trump administration worried about the Supreme Court, I think ruling, if it's what I am anticipating it will be, will stoke those fears that this is a court that is not very eager to stand up to the Trump administration when it violates the law. And of course the Trump administration says, we're not violating the law. We had perfectly good reasons.

And we will debate all that after the opinion comes up, but right now it does seem like the Conservatives are inclined to let the Trump administration do what it wants to do. So, Greg did the administration stick with its argument that Will Burrow said they were doing this so they could enforce the Voting Rights Act? It did, yes, And it also said that the evidence I talked about the Census Bureau had made its recommendation and and said

it would depress participation. And Ross said, you know, I'm not buying their case. I'm not buying what they're saying about about reducing participation, at least not to the extent that the Census Bureau was concerned about it. Essentially, the administration's cases look in a lot of the fact that it's not totally clear that it would or even how much it would to press participation, and that we had

this other concern about the Voting Rights Act. Balancing those factors, it was a reasonable decision for the Secretary to make to include the question one of the quick point I'll make is just that the administration is really pounding hard on the notion that there's a long history of asking about the citizenship in the census, not always in the same way and not of every person, but there's a history that may matter a lot when the Court reaches

its decision before about yes yes. Now, you know, what's one potentially significant difference, at least for the liberals, will be that it wasn't the questions were directed to the household rather than each individual person. And you know, questions about citizenship are still had been over the past several decades asked on another survey. Thanks so much, Greg, That's Bloomberg New Supreme Court Report at Greg's store. Thanks for

listening to the Bloomberg Law Podcast. You can subscribe and listen to the show on Apple Podcasts, SoundCloud, and on Bloomberg dot com Slash podcasts. I'm June Grasso. This is Bloomberg