Legal Docket: Are you a citizen?

NICK EICHER, HOST: It’s Monday morning and a brand new work week for The World and Everything in It. Today is the 29th of April, 2019. Good morning to you, I’m Nick Eicher.

MARY REICHARD, HOST: And I’m Mary Reichard. So looking forward to Friday!

That’s when we’ll be in Dallas, Texas, for The World and Everything in It Live. We’ll be on the campus of Dallas Baptist University.

And this is the second of what we hope will become a series of regular trips around the country. We’d like to bring The World and Everything in It Live to a city near you, too.

EICHER: Our Dallas program will sound very similar to the radio program you’re used to hearing every day. Except we’ll be putting it together live in front of you. So you’ll be able to see some of the nuts and bolts of how a program like this comes together.

We’ll talk about the importance of biblically objective journalism—from news and feature reporting to cultural reviewing.

And we’ll do live listener feedback. We plan to leave plenty of time for questions and comments, and because we’ll all be together, it’ll be fun to have some actual give and take.

REICHARD: You’ll meet Megan Basham, Paul Butler, and J.C. Derrick. Nick and I will host the program, and we’re really looking forward to meeting you!

After the live program, we’ll set aside time to shake hands and take pictures, and just continue the conversation.

Hey, I am told, we are very close to capacity for Dallas, but some seats are left. So what I’m saying is, if you’d like to join us, please reserve your free tickets today.

EICHER: If you go to worldandeverything.org, look to the top of the page and hover over the Engage menu. That’ll activate a pull-down and you’ll see “Live Events.” Click on that and follow the directions.

Again, tickets are free, but you do need one, and we’re almost full. So make your reservation and we’ll see you there.

REICHARD: OK, well it’s time to get back to the business of the day.

We are in the final stretch now with the Supreme Court term.

Oral arguments are all finished, and I’m working to wrap up my analysis for you.

So let’s get right to it.

First up today, probably the most contentious dispute this term (Department of Commerce v New York). The justices heard this one last Tuesday.

It’s a case fast-tracked to the Supreme Court, meaning they skipped the appeals court and took the case directly.

EICHER: And the stakes are high in this one: Census data are used to divide congressional districts. The House of Representatives contains 435 seats, and every 10 years, they’re allocated and re-allocated among the 50 states, and even within them. Census data is at the core of this whole thing.

Last time we did it was after the 2010 census. Ten states had population losses great enough to cost them a total of 12 seats. New York and Ohio lost two each. The other states that lost single seats were Illinois, Iowa, Louisiana, Massachusetts, Michigan, Missouri, New Jersey, and Pennsylvania.

Population gain in eight states meant divvying up those 12 seats among them. Texas picked up the biggest share: four new members of Congress. Florida got two. One each went to Arizona, Georgia, Nevada, South Carolina, Utah, and Washington State.

REICHARD: And so you can see how fraught this issue is, how to design the census: what questions government asks and how it asks them.

The question before the Supreme Court is whether the government can inquire: “Are you a citizen of the United States?”

The ideological divides on the high court were rather obvious. The tone during argument felt tense.

EICHER: Those who don’t want the question included point to studies that show it skews the data: in other words, if the citizenship question is on the census form, fewer people will respond.

Several states, local governments, and civil rights groups challenging the question put it this way: They say that the purpose of the census is to count people. If they don’t fill in the form, that defeats the whole purpose. It distorts how we allocate congressional districts.

One estimate says more than 6 million people “might not” be counted if the government asks about citizenship.

REICHARD: Yet Justice Brett Kavanaugh had an obvious question for the solicitor general of New York, Barbara Underwood. She was one of three lawyers arguing against asking the citizenship question.

Now, you’ll hear Justice Kavanaugh say “ACS.” What that stands for is American Community Survey, and ACS has asked some households about citizenship over the most recent decades.

KAVANAUGH: But the — the United Nations recommends that countries ask a citizenship question on the census. And a number of other countries do it. Spain, Germany, Canada, Australia, Ireland, Mexico ask a citizenship question. And the United States has asked a citizenship question, as you know, in one form or another since 1820, excluding 1840. And, again, long form…in more recent times, and then on the ACS since 2005.

The question is, does that international practice, that U.N. recommendation, that historical practice in the United States, affect how we should look at the inclusion of a citizenship question in this case?

UNDERWOOD: The same guidance from the U.N. also says to be careful to test questions to make sure they don’t interfere with the enumeration. It says you need to make a judgment in context. It may be that those countries either haven’t examined or don’t have the problem…of depressing the enumeration that the United States has. It’s certainly something to look at, but—

KAVANAUGH: But you agree it’s a very common question internationally?

UNDERWOOD: Well, it is certainly useful information for a country to have.

The liberal leaning justices pushed hard against this idea of using American historical practice and common usage elsewhere as reasons to support the citizenship question.

It’s Commerce Secretary Wilbur Ross whose agency oversees the census, and he’s the one who decided to inquire about citizenship.

Listen to Justice Sonia Sotomayor, characterizing what she thought Ross was really up to. She’s addressing here Solicitor General Noel Francisco, who’s supporting Ross’s position.

SOTOMAYOR: This seems like he thought of something: I want to add a citizenship question. I don’t know why, but this is a solution in search of a problem. I’ve got to find a problem that fits what I want to do.

Justice Elena Kagan laid out her understanding of how Secretary Ross decided to include the question. You’ll hear references to “DHS,” and what she means is the Department of Homeland Security.

KAGAN: …it did really seem like the Secretary was shopping for a need. Goes to the Justice Department. Justice Department says we don’t need anything. Goes to DHS. DHS says they don’t need anything. Goes back to the Justice Department. Makes it clear that he’s going to put in a call to the attorney general. Finally, the Justice Department comes back to him and says: Okay, we can give you what you want. So you can’t read this record without sensing that this—this need is a contrived one.

Commerce secretaries have broad discretion Congress grants them when it comes to carrying out the census.

Solicitor General Francisco noted that Secretary Ross had acknowledged the pros and cons of asking the citizenship question. Besides, it’s not for the courts even to question his decision what questions to ask.

FRANCISCO: Because really what you’re saying is that courts would have to review every question on the long form to determine if the informational value of the question outweighed the impact on census accuracy, because at the end of the day if you add any particular question onto the census, you’re always trading off information and accuracy.

Lawyer Dale Ho represented some civil rights groups against the citizenship question. Ho emphasized how inaccurate answers to the question can be and how it discourages people from completing the form.

Justice Neil Gorsuch had a logical rejoinder a bit later in the argument.

GORSUCH: So that it’s very difficult to understand why that question would be the cause of people stopping answering, whereas another possible explanation that hasn’t been explored, as I understand it at least, is the length of the form itself may deter those with less means and less time to fill them out, just as simple as that, and we don’t know. And what do we do with the fact that we don’t know?

HO: Justice Gorsuch, the Census Bureau’s conclusion was that the most likely explanation was the citizenship question.

“Most likely explanation” didn’t seem to convince the conservative justices.

Rather than have the Supreme Court intervene on every possible challenge to a census question, Justice Kavanaugh suggested Congress could do something. It’s already prohibited the government from compelling people to state their religious affiliation.

I’m thinking the majority conservative justices will give a thumbs up to asking the citizenship question. Primary among their reasons may be in not undermining the discretion of the executive branch in this area.

This next case (Parker Drilling Management Services v Newton) is of particular interest to all working people on an hourly wage: and that’s the issue of overtime pay.

Here, it’s for a very specialized kind of work: on an oil drilling rig set in the waters of the continental shelf.

That kind of work typically goes like this: you work for two straight weeks and live on the platform the whole time. You work 12 hours, you sleep eight, you’re on call as needed the other four. You repeat the cycle 13 more times.

Now, those workers are not paid for time they spend asleep or not working. That’s because the federal law overseeing how workers in the United States are treated excludes that time.

It’s the FLSA, the Fair Labor Standards Act.

But that conflicts with what California law says about it. It says workers must be paid for that time.

So oil rig worker Brian Newton brought a class action lawsuit to get that money.

But lawyer for the oil rig company, Paul Clement, laid out his best case like this:

CLEMENT: California wage-and-hour law is neither applicable on the Outer Continental Shelf nor consistent with the federal Fair Labor Standards Act.

…the federal regulators looked at this and they decided generally we’re not going to have sleeping time be treated as work hours. …California looked at that specifically and said: “Well, we like that rule for healthcare workers and one or two others, but not for most other workers. We reject the federal analysis.”

Now, to me, that makes them pretty glaringly inconsistent.

Now, here’s the conundrum. Another federal law called the Outer Continental Shelf Lands Act lets states control land within three nautical miles of the coast.

Beyond that, the federal government has control.

This oil rig platform we’re talking about here is anchored to the seabed off the coast of California, near Santa Barbara. Roughly, three miles out.

But lawyer for the workers, David Frederick, argued to think differently about it.

FREDERICK: … Please keep in mind that the development of the Outer Continental Shelf encompasses relationships with the state. …Why? Because that’s where the worker is coming from. That’s where his lawyer can be expected to understand what the applicable standards are. That’s why, if something happens to him, he’s going to know where to look for a legal redress. And there are many oil rigs within the three-mile limit.

Frederick went on to talk about the practicalities of people who do oil rig work.  

FREDERICK: What we’re talking about is a very fluid situation, if you will, between workers who might go to a rig within the three-mile limit and be governed exclusively by state law, one shift. Come back on shore and then go back out on a shift that would be on the outer continental shelf. And the question is what legal regime is going to cover those people?

BREYER: That makes sense. Difficult argument, both sides.

So the justices must figure out how an important concept plays out in these situations: the concept of federalism.

Here’s what the term refers to: the distribution of power between a central authority— like the federal government— and the states.

Generally speaking and assuming the federal law is constitutional, federal law supersedes state law when the two are in conflict. That’s according to the Supremacy Clause of the Constitution, Article VI, Paragraph 2.  

States can enact more expansive or generous terms to their residents if they want to. But what they cannot do, theoretically, is restrict the rights of a U.S. citizen.

The oil employees are U.S. citizens, but then again, so are the oil-rig employers. The court’s going to have to find a way to strike the balance between them.

And that’s this week’s Legal Docket.

(AP Photo/J. Scott Applewhite, File) In this Jan. 24, 2019, file photo, the Supreme Court is seen at sunset in Washington. 

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