The Census Together With Department 2 Of The Fourteenth Amendment

In today's Wall Street Journal, David Rifkin together with Gilson Grey accept an op-ed arguing that Section Two of the Fourteenth Amendment gives the President the say-so to set a citizenship enquiry on the census form. I accept roughly expertise on this subject, every bit I wrote an article final yr on the human relationship betwixt Section Two, the Census, together with congressional reapportionment.

Rifkin together with Grey are half-right. Section Two does laissez passer on the President the say-so to add together a citizenship question, but solely if the data required yesteryear Section Two virtually voting rights is every bit good solicited. The model is the 1870 Census, which asked all of questions posed yesteryear Section Two. Rifkin together with Grey are instead maxim that ane business office of Section Two (citizenship) is mandatory acre the other parts (on the denial or abridgment of suffrage) are optional. That cannot hold upward right. They stand upward together with autumn together. (Indeed, their quote from John Bingham on Section Two confirms this point.)

Another problem, of course, is that they solely idea of this declaration today. The Government volition hold upward difficult pressed nether the APA to piece of job Section Two every bit a lawful justification now. (Alas, neither the DOJ nor the Commerce Department always cited my newspaper or asked me virtually the analysis.)

So overnice try, but no cigar.