2018-72
18-966
Department of Commerce, et al. Petitioners v. New York, et al.

Summary Analysis

R-72
DATE: 2019-06-27
DOCKET: 18-966
NAME: Department of Commerce, et al. Petitioners v. New York, et al.
WORTHY: True

OPINION: Court
   AUTHOR: Roberts
   JOINING: Thomas, Ginsburg, Breyer, Alito, Sotomayor, Kagan, Gorsuch, Kavanaugh
   GOOD: Yes
PAGES: 29

OPINION: Concurring
   AUTHOR: Thomas
   JOINING: Gorsuch, Kavanaugh
   GOOD: No
PAGES: 15

OPINION: Concurring
   AUTHOR: Breyer
   JOINING: Ginsburg, Sotomayor, Kagan
   GOOD: Yes
PAGES: 23

OPINION: Concurring
   AUTHOR: Alito
   JOINING: None
   GOOD: No
PAGES: 20


Case Commentary

Note: My summary analysis (above) does not take into those times when a Justice concurs in part and/or dissents in part. And as such, the metrics for This Particular Case are more or less meaningless. As I take it, the only one who really agreed with Roberts' Opinion completely was Roberts himself with everyone else split on various issues, believing Roberts either went too far or not far enough.



Also Note: The Study of Law from a Philosophical Perspective is one of my hobbies. I don't know The Law. I am not a Lawyer. And as far as I can tell, there is not a single living soul who places great weight on my opinion in matters of law... nor perhaps, on much of anything else. Meaning, read the slip and consult actual legal texts and treatise if you care about The Law.

But if you want to know my personal political opinions on such matters as This Case brought to mind, well, I can help you with that.



The issues at hand (and as I see them) are threefold:

• Are the decisions of an Agency Head subject to judicial review.
• I would say, 'Yes. Always.'
• Does the Agency Decision at hand pass muster?
• Given that the Decision must be 'justified', then clearly no.
• A more honest justification (in this particular instance, in my personal opinion) would have been 'This is what I want to do' or 'This is why I was put into office; and as such, I am fulfilling my mandate.'
• Should there be a Citizenship Question on the 2020 Census?
• I find it hard to care about this issue.

Uncharacteristically (and in an attempt to maintain some sense of discipline), I will review my opinion of the points (above) in the order listed, keeping in mind that the points as I see them (and if in fact they actually matter) are as I see things: i.e. read the slip if you want to know how The Court feels.



As to Agency Review (per The Opinion of The Court):

The reasoned explanation requirement of administrative law, after all, is meant to ensure that agencies offer genuine justifications for important decisions, reasons that can be scrutinized by courts and the interested public. Accepting contrived reasons would defeat the purpose of the enterprise. If judicial review is to be more than an empty ritual, it must demand something better than the explanation offered for the action taken in this case.

As to the proffered reason being contrived, The Court says:

We cannot ignore the disconnect between the decision made and the explanation given.

The sole stated reason seems to have been contrived.

As noted above, I do not know if there would have been a case if the Secretary had had the balls (and/or the ovaries) to state unequivocally that they felt it was only patriotic to ask about Citizenship on a National Census.

Or if you want a better reason than that:

The United Nations recommends collecting census-based citizenship information, and other major democracies such as Australia, Canada, France, Indonesia, Ireland, Germany, Mexico, Spain, and the United Kingdom inquire about citizenship in their censuses.

Thus, valid (neutral, non-partisan) reasons for including a Citizenship Question exist.



On the other hand, I believe EVERY (EVERY LAST) Agency action should be subject to Judicial Review and this would include actions of any Agency's Chief Officer... please, call them a Secretary.

Further (so, let's get radical), I am unable to see how granting any Discretionary Power to any Administrative Agency is not an Unlawful Delegation of Power.

• Congress cannot delegate its authority.
• Period.
• This is written into The Constitution.
• Granting Discretionary Power to an Agency (or its Secretary) is clearly a Delegation of Authority.
• So basically (as I see it), The Administrative State is Patently Unconstitutional.

Another way of saying the foregoing is that I believe Congress and The Government seem to delight in poking their noses where they do not belong. But if they actually did what they were supposed to do (say, oversee The Census, as in this case), they likely would not have the time to get into much trouble.



Rather than Reporting to Congress, Congress should have to Approve any Agency Decision... any.

Keeping in mind, there is a difference between making a decision and doing that which one has been instructed to do.

Many a man (woman, and/or small child, as lawfully employed) has been told "We don't pay you to think." And since I have long since despaired of The Government being able to exercise common sense or the most rudimentary form of enlightened judgement, I see no reason to grant it greater leeway.



I have no problem grinding The Government to a halt. It's the rationale course of action when confronted with a runaway train.



At this point, I believe I have responded to the first two issues... if not handily... then at least, sufficiently.

So, all that remains is whether or not there should be a Citizenship Question on The Census.



Um, I don't know.

Further, I don't care.



I believe (as does pretty much everybody else, as far as I can tell) that including a Citizenship Question on The Census would reduce the response rate (to The Census) from Illegal Aliens.

Um, so what?



But then, in a comical state of affairs, it would appear (please read the relevant laws should you desire a definitive answer, but as to myself, I cannot be bothered; and thus, I would surmise) Illegal Aliens count as part of the population and are used to decide such things as Funding Allocations, Congressional Districting, and the number of seats any State gets in The House of Representatives.

And I must admit, this seems patently unfair to Actual American Citizens.

So, ask the Citizenship Question and scare the Illegals off. See what I care.



But here's a fun twist. As a point of mathematical fact, The Census will actually (to a point of certainty) yield more accurate results if the Citizenship Question is not asked, as those who answer (any Census without such a Question in it) are expected to be both more numerous and more truthful, as it is believed (and this seems pretty reasonable to me) that Non Citizens are more likely to either lie about being Citizens or not return The Census if a Citizenship Question is asked.

So although a Citizenship Question on The Census will undoubtedly provide more data regarding that particular issue... the data collected is expected to contain more errors (i.e. deliberate lies) and the overall rate of response is expected to decline.



To fill in the picture, it must be realized (and/or acknowledged) that The Census (the actual census) is just one part of The Census Bureau's information gathering stratagem. They use lots (and lots and lots) of existing records... to the point one may well conclude that The Census (as an act) is more important from a Historical, Patriotic, or Political Perspective than it is as an actual information gathering tool.

I mean, you have some form of Government Issued ID, right?

Well, then, we've got you covered.