The Court upheld this interpretation of the enumeration clause in Department of Commerce v New York.14FootnoteSee Id. In an opinion rendered on behalf of the Court, Roberts C.J. considered whether the Secretary of Commerce`s decision to ask a citizenship question on the census questionnaire violated the enumeration clause because the question did not relate to the conduct of an actual count.15FootnoteId. mit 11. In doing so, the Court distinguished the immediate challenge to the Decision of the Minister of Commerce to collect certain demographic data during the census from previous case law concerning the Minister`s decisions on the conduct of the population census for the census. Id. This case law required that decisions about population size be reasonably related to the conduct of an actual census. Id. The Chief Justice began his analysis by acknowledging that the clause gives Congress virtually unlimited powers to conduct the census, which Congress in turn has largely delegated to the Secretary.16FootnoteId. The Court noted that demographic questions have been asked at every census since 1790, which is a long and consistent historical practice that has influenced the admissibility of the underlying practice.17Footnote ID. at 12-13 (This story is important. Here, as in other areas, our interpretation of the Constitution is guided by a governmental practice that “has been open, widespread and undisputed since the beginning of the Republic. Given the early understanding and long practice under the bulletproof clause, we conclude that it allows Congress, and thus the secretary, to inquire about citizenship on the census questionnaire.).
Based on this understanding of the meaning of the clause, the court concluded that Congress, and thus the secretary, has the power to use the census for broader information-gathering purposes without conflicting with the enumeration clause.18FootnoteId. mit 13. In a separate part of the opinion, the Court struck down the inclusion of the question for procedural reasons and found that the Minister had contravened the Administrative Procedure Act by failing to disclose the actual reason for the inclusion of the citizenship question on the census questionnaire. Id. at p. 28. See also Trump v. New York, No.
20-366, Slip op. to 2 (2020) (per curiam) (judgment that opponents of a presidential memorandum ordering the Minister of Commerce to exclude foreigners who are not in legal immigration status from the basis of distribution are not entitled and that the case was not ripe for a decision, noting that everyone now agrees that the government cannot implement the memorandum, excluding the approximately 10.5 million foreigners without legal status.). Although the census clause explicitly provides for a list of people, Congress has collected additional demographic information in the past – within a few years, more detailed questions were asked about the personal and economic affairs of a subset of respondents.13Note Dep`t of Commerce v. New York, No. 18-966, Slip op. to 2 (United States on June 27, 2019). The U.S. Constitution is an organic document that is always open to interpretation and modification (through amendments), and it is interesting to consider some of the terms that the authors have chosen. For example, the census uses “individuals” and not “residents” or “citizens”.
This means that every person living in the United States should be counted, regardless of their immigration or citizenship status. However, some object because the census is designed to determine the number of members in the House of Representatives and believes that by not limiting the census to citizens or legal residents only, the census offers an “unfair advantage” to elected officials who represent states with large immigrant or DACA/Dreamers populations. Introduction “The census presupposes something that is not enumerated.” – Chief Justice John Marshall, Gibbons v. Ogden1 The federal government is a government with limited and listed powers. Every law student learns this formula. And so strong on the heels that sometimes it seems to be the same idea, another principle follows: There are things that Congress cannot do, even without reference to affirmative prohibitions like those in the Bill of Rights. For the sake of simplicity, we can call the first idea the principle of enumeration, and for the reasons that will be explained below, we can call the second idea the canon of internal borders. As long as it is well understood, the principle of enumeration is a solid principle of American constitutional law.
But the canon of internal borders is not. The purpose of this article is to explain why the canon of internal borders, for all its familiarity and wide acceptance, is false. In referring to the idea envisioned as a canon of internal boundaries, I rely on a useful typology that divides the limits of Congressional power into three types.2 Internal boundaries are the limits of Congressional powers taken on their own terms. For example, the authority to govern the District of Columbia3 can be used to write a fire code for the District of Columbia, but it cannot be used to write a fire code for Delaware. This limit is “internal” to the power itself, which means that the limit is included in the definition of power. External borders, on the other hand, are affirmative prohibitions that prevent Congress from doing things that would otherwise be allowed to exercise its powers. For example, the Fifteenth Amendment prevents Congress from holding elections in the District of Columbia for whites only, despite Congress` power to govern the district. The rule against racial discrimination in voting is not conceptually part of the power to govern the district; Prior to the passage of the Fifteenth Amendment, Congress could use this power to hold racially restrictive elections.
