The Georgetown Law Journal Online

On March 26, 2018, Commerce Secretary Wilbur Ross announced that the 2020 Census would ask about the citizenship status of every person in the country. Since this announcement, the Trump Administration has relied heavily on broad historical arguments to defend Secretary Ross’s decision. In both the courts of law and the court of public opinion, the Administration has repeatedly insisted that Secretary Ross’s “citizenship question” has a deep historical pedigree stretching back more than two centuries. This historical narrative, however, is misleading where it is not outright false.

This Article—the first scholarly rejoinder to the Trump Administration’s use of history in the citizenship question cases—demonstrates that the Administration’s historical account is flawed in at least two significant respects. First, the census has never asked for the citizenship status of everyone in the country. Secretary Ross’s proposal is therefore historically unprecedented.

Second, the Administration relies on an impoverished view of census history to suggest that Secretary Ross can find a historical warrant for his decision in citizenship questions that were posed only to small subsets of the population at various points in American history. Viewed in context, these citizenship questions originated as sporadic components of an approach to census-taking that the Census Bureau long ago rejected as incompatible with its foundational, constitutional goal of actual enumeration. These early citizenship questions were part of an increasingly sprawling census that was attempting—with mounting difficulties—to pursue two objectives at once: first, counting everyone; and second, collecting additional information that was used for a mixture of collateral statistical, political, and economic objectives. In the wake of the 1950 Census, the Census Bureau rejected this older paradigm of census practice in favor of a radically different model. Indeed, once social science techniques like sampling granted the Bureau the technical ability to identify and remedy substantial problems in its approach to the enumeration, the Bureau overhauled its approach dramatically. As part of this overhaul, the Census Bureau rebuffed citizenship questions as viable items for any census survey designed to obtain a complete count of the population. Due to intervening developments in the American immigration environment, these questions have never been deemed fit to return to the complete-count form; they have been confined solely to sample surveys sent only to subsets of the population.

This Article will show that under these circumstances, the Administration cannot plausibly invoke census history to justify its current decision to add a new, untested citizenship question to the 2020 Census under either the Enumeration Clause or the Administrative Procedure Act. History instead creates a broad presumption against Secretary Ross’s proposal, one which the Administration has not succeeded in rebutting.