Argument preview: Justices will review challenge to census citizenship question

Editor’s Note: An earlier version of this post ran on April 2, 2019, as an introduction to this blog’s symposium on Department of Commerce v. New York, as well as at Howe on the Court, where it was originally published.

In March 2018, Secretary of Commerce Wilbur Ross announced that the 2020 census would ask whether each person being counted by the census is a U.S. citizen. Ross explained that the Department of Justice’s civil rights division wanted the data to better enforce federal voting rights laws, and he characterized the decision as routine: From 1820 until 1950, the census had generally included a question about citizenship, and from 1960 until 2000, the census asked some respondents whether they were U.S. citizens. But in January a federal district court in New York barred the government from including the question on the census, concluding that the voting-rights explanation was simply a rationale that the government came up with after it had already decided to add the question. On April 23, the Supreme Court will hear oral argument in the dispute.

The challenge to the citizenship question was filed in federal district court by a group of states, cities and counties, along with several civil rights groups. They argue that asking about citizenship could – and was perhaps intended to – lead to the population count being too low, because households with undocumented or Hispanic residents, fearing deportation, would be less likely to respond. And, the argument goes, the inaccurate count could lead to a reduction in federal funding and fewer representatives in Congress for states with large populations of undocumented or Hispanic immigrants, which tend to lean Democratic.

Over the last several months, the justices have repeatedly been asked to intervene in the dispute. In October, the federal government urged the Supreme Court to block depositions of both Ross and John Gore, who served as the acting head of DOJ’s civil rights division, and to prohibit additional fact-finding outside the official administrative record for the decision. The challengers hoped to show, as U.S. solicitor general Noel Francisco has explained, that the decision to bring back the citizenship question “was driven by secret motives, including animus against racial minorities.”

The justices gave the government a partial victory in that round, prohibiting the challengers from deposing Ross but allowing the Gore deposition and the other fact-finding to go forward. At the end of October, the government returned to the Supreme Court, asking the justices to put the trial in the district court – scheduled for November 5 – on hold until the justices could rule on the government’s petition for review of the discovery issues. The justices declined to step in and block the trial, but on November 16 they announced that they would hear oral argument in February in the dispute over the evidence.

Meanwhile, the district court went ahead with the trial and issued its decision in early January, barring the government from using the citizenship question on the 2020 census. Relying on the official record, the district court ruled that the government’s conduct involved a “smorgasbord of classic, clear-cut” violations of the federal law governing administrative agencies. Any additional evidence beyond the official administrative record, the district court explained, “merely confirms that the Court’s conclusions and illustrates how egregious the” violations were.

On January 18, the Supreme Court announced that it had removed the case from the February argument calendar. A week later, the federal government asked the justices to review the district court’s new ruling right away. Normally the government would go first to the court of appeals, and then ask the Supreme Court to weigh in if necessary, but the government argued that quick action on the case is essential so that it can finalize the census questionnaire by the end of June and get the forms printed on time. The justices agreed on February 15 to take up the case, fast-tracking it for oral argument on April 23.

In its brief on the merits, the federal government reiterates that the citizenship question is “wholly unremarkable” and “has been asked in one form or another for nearly 200 years.” The government first disputes whether this case should be in court at all. It argues that the challengers do not have a legal right to sue – known as “standing” – because they can’t show how they will be hurt by the decision to bring back the citizenship question. All they have, the government contends, is speculation – that people won’t answer the census questionnaire completely and truthfully because they fear that the government will use answers from the citizenship question to ferret out people who are in the country illegally, even though doing so would itself be illegal.

The challengers counter that their legal right to sue does not rest on speculation. The government’s own analysis indicates that if the citizenship question is included, approximately 6.5 million people won’t respond to the census, which will create the risk that states in which the groups’ members live will lose seats in the House of Representatives and federal funding for programs that they use. When we have this kind of data showing how people will react to the inclusion of the question, the state and local governments add, it doesn’t matter whether those reactions are illegal or irrational.

Even if the challengers had standing, the government continues, the lawsuit should not be in court because the Trump administration’s decision to reinstate the citizenship question is not the kind of decision that a court can review. Instead, the government explains, the Constitution gives Congress “virtually unlimited” discretion to carry out the census, and Congress has delegated that same kind of broad discretion to the Secretary of Commerce.

The challengers push back, noting that there is a general presumption that courts can review agencies’ actions, and that nothing in either the Census Act or the Administrative Procedure Act, the federal law governing review of actions by federal agencies, indicates that federal courts should not review the decisions that the secretary makes in carrying out the census. Indeed, the challengers observe, the Census Act – the law in which Congress delegated authority to conduct the census to the Secretary of Commerce – does not give the secretary complete discretion, but instead contains a variety of standards that courts can use to review the secretary’s actions.

Even if the decision to add the citizenship question were the kind of decision that courts could review, the government argues, courts should only overturn it if it was “arbitrary and capricious,” or lacking any rational explanation. That low bar is “easily passed” here, the government says. The question was routinely included in early versions of the census, and Ross outlined his reasons for deciding to reinstate the question in a detailed memorandum that specifically “acknowledged the very concerns” that the challengers have raised but ultimately concluded that “the value of more complete and accurate” information “outweighs such concerns.”

Because Ross had a good reason to bring back the citizenship question, the government contends, it doesn’t matter whether he might have had some other motivation for the decision, as the district court ruled. However, the government emphasized, there is in any event nothing to support “the district court’s extraordinary charge that the Secretary of Commerce lied to Congress, the judiciary, and the public” about his decision to restore the question, and the challengers did not bring forward any evidence that in making his decision, Ross was biased against minorities.

The challengers argue that Ross’ decision to add the citizenship question violated federal laws governing administrative agencies in several ways. First, they say, Ross based his decision on assurances that adding the question would not reduce response rates and that combining the citizenship answers with administrative records would result in more accurate data – but both of those assumptions are “flatly contradicted” by the record, which indicates that, if a citizenship question is included, millions of noncitizens and Hispanics will not return their questionnaires. This, they contend, makes the secretary’s decision the kind of “arbitrary and capricious” action that courts can and should overturn.

The decision to use the citizenship question, they continue, also violates two specific provisions of the federal law governing the census – a provision that requires the use of administrative records instead of adding new and direct questions on the census, and a provision that requires the secretary to propose the subjects of the census questions to Congress three years before the census takes place.

But “perhaps most egregiously,” the groups argue, the DOJ request for the data was simply a pretext: Ross had made the decision to include the citizenship question long before the voting-rights issue came up. The government’s argument “that agencies can make decisions for reasons that are completely different from those they publicly disclose,” the groups contend, “violates the transparency in decisionmaking that is a hallmark purpose of the” Administrative Procedure Act, “and would prevent meaningful judicial review.”

The two sides spend relatively little time addressing the evidence issues that originally prompted the court to grant review. The challengers contend that the dispute over the evidence is, for all intents and purposes, no longer a live one now that the district court has reached its decision based only on the official administrative record. But if the Supreme Court decides to reach the issue, they add, it should uphold the district court’s discovery orders because they were necessary to reveal how the decision-making process actually unfolded, which should have been part of the record in the first place.

The government counters that when a court is reviewing a decision by a federal agency, it should only go outside the administrative record when there is a “strong showing of bad faith or improper behavior” by the decisionmaker – which there is not in this case.

Last month the Supreme Court expanded the scope of the case to include whether the decision to include the citizenship question violates the Constitution – specifically, the enumeration clause, which requires that an “actual Enumeration” of the population take place every 10 years to divide members of the House of Representatives among the states.

In this case, the district court in New York dismissed the challengers’ claims under the enumeration clause last year. The lower court cited the “nearly unbroken practice” of including a citizenship question on earlier versions of the census, along with the “longstanding historical practice of asking demographic questions generally” as evidence that the citizenship question “is not an impermissible exercise of the power granted by the Enumeration Clause to Congress.”

But in early March, a federal district court in California ruled that the addition of the citizenship question violates both federal administrative laws and the enumeration clause. Shortly after that decision, the federal government urged the Supreme Court to add the constitutional question to this case, to ensure that the justices can also weigh in on the issue before the June 2019 deadline to finalize the census questionnaire. Otherwise, the government warned, it could find itself in an impossible position: Even if the Supreme Court reversed the New York court’s decision and ruled in this case that the citizenship question does not violate federal administrative laws, other lower courts could still rely on the enumeration clause to block the government from including it. On March 15, the justices granted the government’s request.

The government argues that the citizenship question passes constitutional muster. It notes that questions about the makeup of the U.S. population “have a long tradition on the” census even if they are not “strictly necessary” to count the number of people in the United States.

The challengers disagree. They contend that the enumeration clause requires the Secretary of Commerce’s decisions about the census to be at least “reasonably related” to the goal of getting an accurate count of the total population. But here, they stress, we know that adding a citizenship question would have precisely the opposite effect, by leading to an undercount of the population.

Oral argument in the case is scheduled for April 23 at 10 a.m. It is the only case on the calendar that morning; the other cases already scheduled for argument that day were moved to the afternoon. The justices have already granted the parties 20 minutes of additional time for oral argument, bringing the total allotted time to 80 minutes, and have allowed the House of Representatives to participate as a “friend of the court” on the side of the challengers.