At the incarnation of The Volokh Conspiracy now hosted at Reason.com, Eugene Volokh articulates the seemingly contrarian argument that not only does the Census Bureau have the authority to ask a citizenship question in the context of the decennial census, it is obligated to do so:
Section 2 has three relevant clauses (emphasis added):
- “Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed.
- “But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime,
- “the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.”
Basically, there is no way to make that determination other than by asking the question. Since it’s an affirmative obligation (“shall be reduced”) and consequently so is a citizenship question.