Speaker 1: Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every
Speaker 1: day we bring you insight and analysis into the most
Speaker 1: important legal news of the day. You can find more
Speaker 1: episodes of the Bloomberg Law Podcast on Apple Podcasts, SoundCloud
Speaker 1: and on Bloomberg dot com slash podcasts. Now Turning to
Speaker 1: other news. Testifying at a House Oversight Committee hearing this morning,
Speaker 1: Commerce Secretary Wilbur Ross stuck with his contention that he
Speaker 1: included a citizenship question on the because Justice Department officials
Speaker 1: made a formal formal request of him. The Democratic chairman,
Speaker 1: Elijah Cummings said documents showed that Ross had been working
Speaker 1: to add the citizenship question from his first days at
Speaker 1: the Commerce Department, and he gave him a chance to
Speaker 1: change his prior testimony, which Ross refused to do. Joining
Speaker 1: me is Richard Brafald, a professor at Columbia Law School.
Speaker 1: Rich A lot of these documents have been made public.
Speaker 1: There have been in two court cases on this issue.
Speaker 1: What do you know as far as the court cases,
Speaker 1: what they've shown you about it? Well, the two court opinions,
Speaker 1: one from the Southern District of New York and one
Speaker 1: from the District Court in California have both been uh,
Speaker 1: quite devastating in terms of their interpretation their reading of
Speaker 1: what happened in terms of how the Secretary made the
Speaker 1: decision to add the citizenship question. Both really what happened?
Speaker 1: I say it sort of express deep doubts about the
Speaker 1: candor of the Secretary and indicate that there's a lot
Speaker 1: of evidence that one of the decision was written. They
Speaker 1: decide the idea of doing this began very very early
Speaker 1: in the administration, long in advance of any letter from
Speaker 1: the Justice Department. And two that the letter from the
Speaker 1: Justice Department itself originated from pressure in part from the
Speaker 1: Commerce Department to get such a letter that we give
Speaker 1: them the excuse for adopting the rule on the citizenship questions.
Speaker 1: So there's a lot of evidence in the court records
Speaker 1: that cut very much against what the Secretary has been saying.
Speaker 1: Would it make sense that the Justice Department at this
Speaker 1: time would need information like that to enforce the Voting
Speaker 1: Rights Act? Um? A lot of people say, no, Uh,
Speaker 1: they've been it's been done. The Voting Rights Act has
Speaker 1: been enforced rather successfully without this question for some time. Uh.
Speaker 1: And they until until they were repeatedly proded by Commerce
Speaker 1: they had expressed no interest in this now or in
Speaker 1: prior voting rights prior presidential administrations which may have which
Speaker 1: were more known for their aggressive enforcement of the Voting
Speaker 1: Rights Act. Now, from what I understand, even people in
Speaker 1: the Commerce Department, the experts in this area, which includes
Speaker 1: the Census Bureau, said the question could result in undercounting
Speaker 1: the state's non citizen population, and they've prepared methods to
Speaker 1: sort of mitigate the shortfall if it happens. Right now,
Speaker 1: there's there's a lot there's well established evidence that if
Speaker 1: you ask this question, uh, even if you're known to
Speaker 1: be asking this question, some people will simply not fill
Speaker 1: out the form whether their non citizens themselves, where they
Speaker 1: simply have non citizens and their families. Uh, some households
Speaker 1: will have a mixture of citizens and non citizens, and
Speaker 1: that people will be uncertain, world doubt the secrecy of
Speaker 1: the census results. They're supposed to be confidential, but they'll
Speaker 1: be nervous about it, and they'll be nervous that even
Speaker 1: if they are uh here legitimately with proper documentation, UM,
Speaker 1: they may be nervous that this will have some negative
Speaker 1: reaction for them. So there's a lot of concern that
Speaker 1: this will this if this question is asked, that it
Speaker 1: will exacerbate the undercount and lead to us to be
Speaker 1: an improper count. Let's discuss this case that's coming before
Speaker 1: the Supreme Court on the census. Will Ross's testimony about
Speaker 1: this and his different Uh well, let's say, well Ross's
Speaker 1: testimony about this and his position on this be part
Speaker 1: of the Supreme Court case or not. It will be
Speaker 1: in the record as far as I know. I mean,
Speaker 1: that's that's what the Supreme Court technically doing is it
Speaker 1: is reviewing the decision of Judge Furman in New York
Speaker 1: on taking the case up before the before the case
Speaker 1: went through the Court of the Second Circuit Court of Appeals.
Speaker 1: I'm not sure if they have yet added the case
Speaker 1: out of California, but everyone expects that they will, in
Speaker 1: part because the the the issue of what of the
Speaker 1: questions on the senses really has to be decided fairly soon.
Speaker 1: There really has to be decision. I think some people
Speaker 1: think by June. So there is a closed record and
Speaker 1: some sense of the question is the judge fermantly made
Speaker 1: a conclusion a constitutional question but purely in the Administrative
Speaker 1: Procedure Act that the way in which the decision was
Speaker 1: made to add this question failed to comply with the
Speaker 1: Administrative Procedure Act. So there is a record on that.
Speaker 1: So I don't know that this will be and it's
Speaker 1: possible that the lawyers will try and get some of
Speaker 1: it in UM, but I think there already is a
Speaker 1: complete record now. This second judge in California, Judge Seaborg,
Speaker 1: wrote that the inclusion of the citizenship question on threatens
Speaker 1: the very foundation of our demock radic system and does
Speaker 1: so based on a self defeating rationale. As you mentioned,
Speaker 1: two judges both times saying the citizenship question shouldn't be included.
Speaker 1: But looking at the Supreme Court, do you see with
Speaker 1: this more conservative court a different opinion there? Well again
Speaker 1: and and certainly uh, two of the judges have already
Speaker 1: in uh, in separate opinions connected with the decision to
Speaker 1: take the case. I have expressed some doubts about what
Speaker 1: Judge Ferman in New York did. It was in a
Speaker 1: sort of an opinion by Justice Corsip Corshs, I think,
Speaker 1: joined by Justice Thomas Um. I mean, at least the
Speaker 1: Ferman case, the New York case will focus really about
Speaker 1: administrative procedures and in theory should be whatever the views
Speaker 1: are about how the sensors should be wrong. The question
Speaker 1: really is did the did the Commerce Department follow the rules?
Speaker 1: Did they do the kinds of review uh necessary to
Speaker 1: a nick major change like this that the law requires,
Speaker 1: as I, as advocates of the question will point out,
Speaker 1: pointed out and many times in the past a citizens
Speaker 1: citizenship question was part of the census of aways think
Speaker 1: the last time was either in or nineteen sixty, So
Speaker 1: it is a big departure in the last many decades.
Speaker 1: It's not out of a question for that question to
Speaker 1: be asked, but there is a real downside to it
Speaker 1: in terms of reducing the accuracy of the count. And
Speaker 1: I think, what what the departments coartment should have done
Speaker 1: if I wanted to ask this question was due a
Speaker 1: legitimate review of whether of the benefits of the of
Speaker 1: the question versus the harms and the allegations that have
Speaker 1: been made by the people challenging this, And the finding
Speaker 1: I think in both the New York and California courts
Speaker 1: is that they failed to do the kind of assessment
Speaker 1: that the Administrative Procedures Act normally requires. All Right, thanks
Speaker 1: so much. Rich as always, will be keeping our eyes
Speaker 1: on the Supreme Court for the final answer to this.
Speaker 1: That's Richard Brofald, a professor at Columbia Law School. Thanks
Speaker 1: for listening to the Bloomberg Law Podcast. You can subscribe
Speaker 1: and listen to the show on Apple podcast US, SoundCloud,
Speaker 1: and on Bloomberg dot com slash podcast. I'm June Brosso.
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