On March 26, 2018, the Secretary of Commerce ordered that the 2020 Census include a question about citizenship of all U.S. residents for the first time since 1950. On June 6, 2018, the New York Immigration Coalition, Casa, the American-Arab Anti-Discrimination Committee, the ADC Research Institute, and Make the Road New York—all advocacy and policy organizations—filed this action against the Department of Commerce and Bureau of Census in response. Represented by private counsel, the New York Civil Liberties Union, and the ACLU, the plaintiffs alleged that the question was a form of intentional discrimination directed at immigrant community of color to deter them from participation in the Census. Such underreporting would subsequently affect the allocation of federal resources to these communities and their political representation in federal and state government. They claimed that the question was motivated by discriminatory animus and the Trump Administration's hostility toward people of color and immigrant communities. Any rationale stated was blatantly pretextual: the intentional discrimination would violate the Fifth and Fourteenth Amendments equal protection and due process and the arbitrary and unconstitutional federal action would violate the Administrative Procedure Act. The plaintiffs sought declaratory relief, a preliminary and permanent injunction, and attorneys' fees and costs on behalf of their members, as well as for the organizations themselves for the funding they receive as the result of Census data.

The case was assigned to Judge Jesse M. Furman as related to States v. U.S. Department of Commerce. On June 13, the cases were informally consolidated and coordinated for purposes of scheduling and case management.

On June 29, the Department of Commerce filed a motion to dismiss that the plaintiff organizations lacked standing to sue on behalf of their membership. Moreover, they claimed that the plaintiffs failed to state an Enumeration Clause claim or an Equal Protection claim. On July 26, the court granted in part and denied in part the motion to dismiss. The court held that the Secretary of the Department of Commerce did not have a blanket protection from judicial review; that rather, the purpose of the judiciary is exactly to review the conduct of other political branches. The court concluded that under the Enumeration Clause, the question was not whether the Secretary exercised his authority in a discriminatory manner, but whether he had the authority to add a question about citizenship to the Census. Those questions about his authority to exercise executive power were dismissed. However, the court found that the plaintiffs sufficiently alleged a plausible Equal Protection claim under the Due Process clause. The case was allowed to proceed to discovery, though the court noted that the Enumeration Clause and Census Act granted the Secretary of Commerce broad authority over the Census.

As of August 28, 2018, these two cases remain coordinated. The plaintiffs had sought leave to file an amended complaint in August based on newly acquired discovery and false testimony. They requested to add the Department of Justice, the Attorney General, and the Acting Assistant Attorney General to the complaint and the court had not yet ruled on the motion.

Chelsea Rinnig - 08/29/2018


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