Principle Over Pretext: The Supreme Court Isn’t Buying What Wilbur Ross Is Selling

In a ruling that has surprised many legal observers, the Supreme Court, in a 5-4 opinion by Chief Justice John Roberts, dealt the Trump administration a major setback to its efforts to impose a citizenship question on the 2020 Census by sustaining a lower court’s order to remand the issue back to the Commerce Department for further proceedings. Opponents of the question, which would ask all census respondents “Is this person a citizen of the United States?” had claimed that the question would lead to a significant depression of responses, especially amongst households containing non-U.S. citizens.

The ruling has prompted the President to tweet that he has asked lawyers whether he can “delay the Census, no matter how long, until the United States Supreme Court is given additional information from which it can make a final and decisive decision on this very critical matter.”

Previously, judges in New York, California, and Maryland each found that Commerce Secretary Wilbur Ross, who oversees the Bureau of the Census, violated proper administrative procedures by acting in an arbitrary and capricious manner when deciding to implement the question. The lower courts reached this conclusion in part based on: evidence from the Census Bureau itself that inclusion of such a question would depress response rates, especially amongst households containing non-U.S. citizens; evidence that the 2020 Census would be costlier to administer with this question; and evidence that the stated rationale for the question — purportedly to support a request by the Department of Justice for more precise citizenship data to help enforce Section 2 of the 1965 Voting Rights Act (VRA) — was essentially a pretext, fabricated at Ross’ direction, by his staff who lobbied other agencies to formally request that the question be added.

The majority opinion affirming the lower court’s remand hinged on this latter point –agreeing that Ross’ sole stated rationale for reinstating the citizenship question, VRA enforcement, “seems to have been contrived.” The high court noted the “disconnect between the decision made and the explanation given.” That evidence, the majority noted,

tells a story that does not match the explanation the Secretary gave for his decision. In the Secretary’s telling, Commerce was simply acting on a routine data request from another agency. Yet the materials before us indicate that Commerce went to great lengths to elicit the request from DOJ (or any other willing agency).

The majority held that the Administrative Procedures Act (APA) requires a reasoned explanation to “ensure that agencies offer genuine justifications for important decisions, reasons that can be scrutinized by the courts and the interested public” and that in this case, the reasons simply failed to pass a basic smell test.

The high court’s ruling did not take into consideration the recently uncovered new evidence suggesting the political and racial motivations behind the question, which prompted the Fourth Circuit to remand the Maryland case back to the district court for further fact finding on discrimination claims.

To be clear, the ruling did not hold that reinstatement of the question would violate the Enumeration Clause of the Constitution (as the Maryland the California district courts found) as Congress and the courts have long countenanced the collection of census data for a variety of statistical purposes, not simply enumerating the population, but also asking about age, sex, occupation, literacy, health, marital status or other information, and that the citizenship question had been asked for many years in prior censuses. The President’s threat to delay the census, however may very well run afoul of the Clause that requires the count to be conducted every ten years.

The opinion also found that the secretary’s decision was supported by the evidence before him — that is, the secretary did in fact request and consider the Census Bureau’s analysis of various ways to collect improved citizenship data and explained why he thought the best course was to both reinstate a citizenship question. The Chief Justice noted that the Secretary conducted a cost-benefit analysis weighing the value of obtaining more complete and accurate citizenship information against the risk that reinstating the question would result in a materially lower response rate.

Justice Clarence Thomas, writing for himself and Justices Neil Gorsuch and Brett Kavanaugh dissented, arguing that the Court should have limited its review to

“whether the Secretary complied with the law and gave a reasoned explanation for his decision,” which the majority affirmed. Justice Thomas took issue with the majority opinion invalidating an agency action solely because “it questions the sincerity of the agency’s otherwise adequate rationale.”

In a concurring opinion joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan, Justice Stephen Breyer maintained that Ross’ decision was arbitrary and capricious because it ran counter to the weight of evidence in the administrative record, which suggested that imposition of the citizenship question would not only depress the accuracy of the overall census, but would likely provide less accurate citizenship data.

While the Chief Justice disagreed with Justice Breyer, characterizing his concurrence as “subordinating the Secretary’s policymaking discretion to the Bureau’s technocratic expertise,” we believe a different kind of subordination is at play here. We remain highly concerned that from a policy perspective the secretary would subordinate the entire fate of the nation’s largest civilian undertaking to a narrow (purported) Justice Department request for more granular data that could have been largely attainable through alternate means such as from more fully exploiting administrative records.

Although the Court has carved out wide latitude for the Commerce secretary’s discretion as a matter of administrative law, it is worth visiting what type of “technocratic expertise” the secretary purportedly considered, but ultimately disregarded. For example, the Census Bureau’s own statisticians recently predicted that the citizenship question could cause up to an 8 percent decline in self response of households containing a non-citizen. This latest analysis surpasses the previous 5.8 percent decline attributed to the question. Translated into human numbers, the 5.8 percent figure represents roughly 6.5 million people, greater than the population of Missouri, and the 8 percent figure equates to roughly 9 million, greater than the population of New Jersey. That undercount could mean the gain or loss of several congressional seats as was seen after the 2010 count when New York and Ohio each lost two. In terms of monetary costs, remedying this undercount through individual door-knocking in a process known as “non-response follow up” would add nearly a hundred million dollars to the cost of the census.

Why would the head of the agency charged with conducting a constitutionally mandated census in the most thorough and accurate way possible jeopardize the success of the entire undertaking and threaten accurate apportionment, redistricting, and the distribution of nearly a trillion dollars of federal funding in order to meet the very narrow request of another agency? The Chief Justice wrote that the secretary “considered the relevant factors, weighed risks and benefits, and articulated a satisfactory explanation for his decision.”

But as Justice Breyer’s concurrence concluded, the secretary’s failure to give adequate consideration to factors such as “the high likelihood of an undercount, the low likelihood that a question would yield more accurate citizenship data, and the apparent lack of any need for more accurate citizenship data to begin with” made “his decision unreasonable. They are the kinds of failures for which, in my view, the APA’s arbitrary and capricious provision was written.”

Procedurally, the Commerce Department will have to go back to the drawing board if it still wants to place the citizenship question on the 2020 count. But even if the question is not on the final census forms, the attempt by the secretary to include it has already harmed the reputation and integrity of the Census.

The Census already faces significant challenges posed by traditionally “hard-to-count” populations. These populations include undocumented immigrants, young children, itinerant persons, low-income families, persons experiencing homelessness, LGBTQ persons, people with disabilities and non-English speakers who have long been undercounted. Likely to compound this undercount is the fact that the 2020 Census will be the first to be online, and will take place in the midst of a rancorous presidential election year.

But don’t just take our word for it – in January, the Census Bureau issued its final report on overcoming obstacles to answering the census, known as the “Census Barriers, Attitudes and Motivators Study” (CBAMS) which surveyed a variety of respondents about their views on the census, including about the citizenship question. The Census Bureau found, in part that, “the vast majority of reactions were negative” to inclusion of the question. Disturbingly, most participants across all audiences interviewed responded that they believed the purpose of the citizenship question was to deport undocumented people. The Court’s ruling on standing even acknowledged that respondents met their threshold burden of establishing that

significant numbers will likely react in predictable ways to the citizenship question…The evidence at trial established that noncitizen households have historically responded to the census at lower rates than other groups, and the District Court did not clearly err in crediting the Census Bureau’s theory that the discrepancy is likely attributable at least in part to noncitizens’ reluctance to answer a citizenship question.

But as we’ve written recently, irrespective of how the Court ruled, even if the question were upheld, we, the people, can abate that harm. It is incumbent on all those who receive a census questionnaire to respond without fear. While the Chief Justice may have held that a court should not substitute its judgment for that of an agency head, the American people can certainly make the Census succeed despite the judgment of a secretary of Commerce who would subordinate both accuracy and constitutional duty to pretext. We can do so by standing up and being counted.

 

IMAGE: WASHINGTON, DC – JUNE 27: People gather in in front of the U.S. Supreme Court as decisions are handed down on June 27, 2019 in Washington, DC. The high court blocked a citizenship question from being added to the 2020 census for now, and in another decision ruled that the Constitution does not bar partisan gerrymandering. (Photo by Mark Wilson/Getty Images)

 

About the Author(s)

Barry K. Robinson

A practicing attorney, former Chief Counsel for Economic Affairs, U.S. Department of Commerce, former Senior Counsel for Corporate Affairs for the Recording Industry Association of America, Inc.

Edgar Chen

Edgar Chen previously served as Counsel to the Assistant Attorney General for the Criminal Division, as well as in the Office of Legislative Affairs and the Human Rights and Special Prosecutions Section, at the U.S. Department of Justice.