Over the past few days, I’ve seen a lot of commentary—including from some lawyers whose opinion I respect a great deal—asserting that the Supreme Court’s opinion in Department of Commerce v. New York will prevent a citizenship question from appearing on the 2020 census. Many of these articles and tweets have celebrated the Chief Justice for his bravery, principle, and (long-delayed) unwillingness to accept pretextual reasons for a Trump Administration policy. To hear them tell it, this decision was a huge win.
Like Rick Hasen (here), Steven Mazie (here), Mike Dorf (here), and some others, I’m skeptical. Indeed, I think it’s extremely likely that the citizenship question will appear on the 2020 census—and the Chief intended precisely that result. Let me explain why.On first glance, the Chief’s opinion is baffling. The ultimate disposition is vacatur of the agency action and remand to the agency for a reasoned explanation. In light of that disposition, there is little need to say much more: the Court could simply explain that the agency’s reasoning was pretextual and then vacate and remand. Yet that doesn’t occur until Part V of the opinion. In Parts I and II, the Chief appropriately addresses threshold questions about standing and the availability of judicial review. Part III, however, decides a major constitutional issue whose resolution is not necessary to the Court’s own outcome. Part IV does the same for a slew of statutory and administrative law issues.
Especially in light of the Chief’s stated preference for minimalist decisions, this raises an important question: why did the Court decide these constitutional, statutory, and regulatory questions, none of which it needed to decide to vacate and remand?