In Department of Commerce v. New York, the Supreme Court by a 5-4 majority refused to allow Commerce Secretary Wilbur Ross to add a question on respondents’ citizenship to the 2020 U.S. census, on the rationale that his reasons for doing so—i.e., to help the Department of Justice implement the Voting Rights Act—were contrived and pre-textual.
There’s a lot of public confusion around this decision, and for good reason. The court grappled with a highly complex and nuanced area of the law—not the U.S. Constitution, mind you, but one with enormous separation of powers implications nonetheless.
It’s now being reported that the Trump administration is noodling another end run around Congress (the last such maneuver was a presidential declaration of a national emergency at the southern border): adding the citizenship question by executive order.
Can he do that? Some scholars say yes, some say no. The correct answer is maybe. It depends on whether one of the other two branches jumps in to stop him.
First, let’s get one thing straight. The Constitution does not give the power to conduct a census to the president. It gives it to Congress. Congress handed off that power to the commerce secretary in a statute known as the Census Act.
Congress does this kind of thing all the time. It creates agencies and gives them power to make laws on Congress’s behalf. We call these laws regulations. When agencies make regulations, they have to comply with another statute that articulates a detailed process they must follow. That statute, the Administrative Procedure Act (APA), also gives courts the power to review the agency’s work. The majority in Department of Commerce held that the Ross blew it under the APA when he exercised the powers that Congress gave him by statute—powers that belonged to Congress in the first place under the Constitution.
Second, it’s important to underscore the practical realities here, which suggest that this constitutional dilemma is more theoretical than real. If Trump issues an executive order adding the question, it will go to court, and a federal judge may well issue an injunction stopping the action based on the Department of Commerce decision. With the clock ticking for the 2020 census, there might be no time for Team Trump to add the question to the physical form even if it were ultimately to win a case involving an executive order.
Third, Congress could always amend the Census Act to make clear that a citizenship question should be added—or that it should not be added. That would fix this whole mess in a manner that’s wholly consistent with the Constitution itself. But of course, Congress doesn’t pass much substantive legislation on anything these days, and it’s been stunningly complacent in allowing its constitutional powers to be squashed and marginalized for generations to come. (In fairness, members on both sides of the aisle have balked at this phenomenon under Trump, but not enough to override a veto.)
Fourth, the only member of the judicial branch that matters here is Chief Justice Roberts. If the propriety of an executive order were to reach the Supreme Court, the four justices in the majority in Department of Commerce would say no to it, and the four in the minority would say yes. What would Roberts do?
Executive orders have been tolerated since the days of George Washington. President have issued thousands of them—even though there is no express authority for them in the Constitution and even though they have the force of law. Abraham Lincoln’s Emancipation Proclamation was done by executive order, for example.
But the Supreme Court has not always blessed a president’s use of executive orders. Most famously, it held in Youngstown Sheet & Tube Co. v. Sawyer that President Truman acted unconstitutionally in seizing private steel mills by executive order during the Korean War. In short, the president must trace his power to issue a particular executive order either to the Constitution itself or to a statute passed by Congress.
Where might that sleuthing lead in the case of an executive order imposing a citizenship question?
Trump could argue that the power comes from the Census Act. After all, the commerce secretary is within his chain of command. He appointed him, and Ross serves at his pleasure. Moreover, the APA does not apply to the president. Trump could argue, then, that he isn’t bound by that statute or the majority’s decision in Department of Commerce, because that was all about the APA.
This argument is problematic as a matter of the separation of powers. By doing by executive order what he cannot do through the Commerce Department, Trump would be making an end run not just around Congress—which gave its census powers to the commerce secretary, not the president—but also an end run around the Supreme Court. Let’s face it, most presidents accept Supreme Court decisions, take their licks, and go on with their business out of due respect for a coordinate branch of government. Not DJT.
Alternatively, Trump could argue that his power comes from Article II of the Constitution, which empowers him to take care that the laws are faithfully executed. The Census Act is a law. The Constitution doesn’t define “faithfully,” and he could argue that all he would be doing in tailoring the form for the 2010 census as he sees fit is routine law execution.
But the Census Act contains its own requirements and deadlines that even the president would have to meet in issuing an executive order. The time for compliance with those has passed. Roberts could decide that presidential power is broad enough to get around even that. After all, there’s nothing in the text of the Constitution to stop the Supreme Court from reaching that conclusion. And there’s plenty of presidential history to back up the exercise of substantial power by executive order.
If the court were to decide that the president can bypass an act of Congress by executive order, it would amount to a near-fatal blow to Congress’s prerogative to make laws. The result? Way, way, way too much power in the office of the presidency. And don’t be fooled: Regardless of how one regards Trump himself, that power—handed off to a future president—will come back to haunt every one of us.