At oral argument last week, the Supreme Court seemed poised to side with President Trump on the question whether the U.S. Census Bureau can ask people if they are U.S. citizens. Critics have objected to inquiring about citizenship status, observing that doing so is likely to result in an undercount, since many non-citizens will decline to participate in the census. Other non-citizens are likely to answer untruthfully, rendering the data about citizenship inaccurate.

While the Court’s conservative ideological bias will be a key factor in the outcome, also critical is the extent to which Congress has delegated its policy making power to the White House and the extent to which the Court has been willing to allow the delegation. Previous Court decisions, supported by both conservative and liberal justices, provide the Court with ample basis for a pro-Trump decision. 

Over many decades, Congress has given the executive branch broad authority to decide national policy, including how to take the census. Even though the Constitution rested policy making power in Congress, with the executive branch to implement Congress’ policy choices, Congress has repeatedly transferred its policy making power to presidents and their cabinets. As Trump’s legal team has observed, federal law grants the Secretary of Commerce responsibility to conduct the census “in such form and content as he may determine.” Once Congress has given sweeping authority to the executive branch, presidents have broad power to implement their political agendas. Hence, the decision by the Court last year to uphold Trump’s travel ban.

Of course, the Supreme Court could have prevented this broad delegation of policy making power, insisting that Congress retain its constitutional authority or making sure that presidents exercise their power responsibly. And the Court once did so. But since the late 1930’s, the Court has failed to police Congress or the White House in most areas of policy. If Congress wants to let presidents make policy, the Court doesn’t object, and if one can imagine a plausible argument for presidential action, that is sufficient. Hence, under long-standing precedent, the Court’s conservative majority can uphold the Trump Administration without believing that it is wise or useful to include a citizenship question.

To be sure, when fundamental rights are at stake, the Supreme Court will check and balance Congress and the President more aggressively. But for the most part, we need to rethink the role of the Supreme Court if we want it to police the executive and legislative branches more effectively

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