Nonsensus: Pretext and the Decennial Enumeration

Abstract

It is impossible to overstate the importance of the Census. The obligation to conduct a decennial enumeration of the population appears in the sixth sentence of the Constitution, as the very first duty given to the new federal government: before the enumeration of legislative power, before the power to declare and wage war, before the resolution of federal judicial cases. The Census enjoys this primacy because it is, logically, antecedent to the construction of a federal government that ostensibly obtains its power from the people. From the Founding, legislative representation in the federal government has always depended on knowing how many people live where.

In March of 2018, Secretary of Commerce Wilbur Ross determined that, for the first time in the country’s history, the Census Bureau would ask every household about the citizenship of its residents. This article traces the ostensible rationale for that decision, and the way that rationale was challenged, and later proved determinative, in litigation. It also examines the Supreme Court decision that resolved the challenge, the very near breakdown in the rule of law in the aftermath of the decision, and the future import of the decision for administrative law and for public law more generally.

Keywords: census, motive, Voting Rights Act, litigation, enumeration, government intent, pretext