The US Supreme Court heard arguments in three cases Tuesday, including a case challenging the Trump administration’s citizenship question in the 2020 census, another concerning the Fourth Amendment’s scope in relation to blood draw of unconscious motorists, and the last regarding the meaning of “knowingly violates” under the Firearm Owners’ Protection Act.
In Department of Commerce v. New York, the court is considering whether Secretary of Commerce Wilbur Ross violated the Administrative Procedure Act (APA) when he decided to include a citizenship question on the 2020 census to obtain records of non-citizens in the US. The citizenship question was moved from the short form census to the long form census in 1960 and has not appeared on the short form census since. The controversy over whether to add the question stems from the evidence that including the question on the census will actually decrease response rates and accuracy because non-citizens will be afraid to answer truthfully.
The district court ruled for the respondents, governmental agencies and non-profit organizations, and enjoined the Secretary from reinstating the citizenship question on the 202 census. The court held that the Secretary violated the APA because his decision was “arbitrary and capricious” and relied on inaccuracies in the data. The Department of Commerce appealed directly to the Supreme Court.
During oral arguments, the Solicitor General argued that the court does not have the authority to decide whether the Secretary properly complied with the APA in deciding to add the citizenship question. Justice Elena Kagan explained the problem with the Secretary’s decision after pointing out that the Census Bureau advised the Secretary not use both a citizenship question on the census and the administrative record to determine an estimated number of non-citizens currently living in the United States.
So there is a bottom line conclusion from the Census Bureau. And it seems as though Secretary needs is some … I mean, a Secretary can deviate … from his experts’ recommendations and from his experts’ bottom line conclusions. … But the Secretary needs reasons to do that, and I searched the record and I don’t see any reason.
The court next heard arguments in Mitchell v. Wisconsin, which asks whether the Wisconsin “implied-consent” law “authorizing a blood draw from an unconscious motorist” is constitutional as an exception to the Fourth Amendment warrant requirement. Wisconsin, like many states, has a statute that permits law enforcement to draw blood from motorists “without a warrant, without exigency, and without the assent of the motorist, under a variety of circumstances-most commonly when the motorist is unconscious.”
The Petitioner argued that the court’s precedent has never permitted consent by statute, saying “the capacity for a conscious choice is the bare minimum for voluntary consent. Given that we’re talking about someone who is unconscious, that’s a good enough reason for this Court to reject the State’s consent theory.” The Respondent, the state of Wisconsin, argued that concern for motorist safety permits the government to draw blood from an unconscious motorist:
The fundamental question is reasonableness. Every state holds drivers to a bargain to comply with testing should police have probable cause of intoxicated driving. Wisconsin, like over half the states in the country, reasonably recognizes that a driver should not evade that bargain by becoming the most dangerous of intoxicated drivers. An unconscious driver has made all the choices that put others’ lives at risk but then, through no fault of the government, has put himself in a position where he cannot make further choices.
Finally, the court heard arguments in Rehaif v. US, which asks whether a noncitizen unlawfully in the US can be convicted for knowingly violating a federal firearm-possession law when he did not know he was in the US illegally, or must the government only prove the defendant knew he possessed the firearm? The Firearm Owners’ Protection Act (FOPA) states: “It shall be unlawful for any person … who, being an alien, is illegally or unlawfully in the [US] … to possess … any firearm or ammunition.”
The Petitioner argued that since he did not know he was in the US illegally, he could not be convicted under the statute.
To knowingly violate [the FOPA], one must know the crucial fact that transforms his otherwise innocent firearm possession into a 10-year felony. That fact is his status. Applying a knowledge requirement to that fact makes sense because, ordinarily, firearm possession is lawful and, in fact, in most cases, constitutionally protected. So it only makes sense that a person should be required to know he fits within that status before his firearm possession becomes illegal.
The Respondent, the US, countered, saying the FOP does not require “proof that the defendant was subjectively aware of his own legal status, “nor does it create a safe harbor for aliens or felons who remain ignorant, even recklessly ignorant, of their own circumstances. Instead, FOPA reflects the long-standing nationwide consensus that a defendant knowingly violates the statute if he, despite his prohibited status, knowingly possesses a gun.”