Census symposium: The unanswered census question

Kaylan Phillips serves as litigation counsel for the Public Interest Legal Foundation, a 501(c)(3) public-interest law firm dedicated to election integrity. The foundation filed cert-stage and merits-stage amicus briefs in support of the government in Department of Commerce v. New York.

“Are you a citizen of the United States?” It is a simple question that if asked on the 2020 decennial census would provide critical data not available elsewhere that would enhance the enforcement of civil-rights laws. The Supreme Court’s decision regarding the reinstatement of this question on the 2020 census, arguably the most anticipated decision of the term, left more questions than answers. The eight-word question resulted in 92 pages of opinions including three partial dissents. Court-watchers are left wondering what will happen next.

A first read of Chief Justice John Roberts’ opinion for the court sounds like a slam-dunk win for the government. As to the constitutional claims, the court acknowledged that the Constitution allows the census to be used “for more than simply counting the population” and held that it is constitutional “to inquire about citizenship on the census questionnaire.” One point for the government.

As to the claims under the Administrative Procedure Act, the court held that “[t]he evidence before the Secretary supported [his] decision.” The court explained how the secretary, faced with several options with unknown variables, “opted instead for the approach that would yield a more complete set of data at an acceptable rate of accuracy, and would require estimating the citizenship of fewer people.” In short, the decision to reinstatement the citizenship question is justifiable and reasonable. Two points for the government.

As to the lower court’s finding that the secretary violated the Census Act, the court disagreed. The court determined that the secretary had fulfilled his responsibilities under the Census Act and, even if there was some technical violation, “the error would surely be harmless in these circumstances.” Three points for the government.

Further, the court found that, although the secretary desired to reinstate the citizenship question early on in his tenure, “[i]t is hardly improper for an agency head to come into office with policy preferences and ideas.” Four points for the government.

Toward the end of the opinion, the court discussed the Department of Justice’s request for the reinstatement of the citizenship question. “Altogether, the evidence tells a story that does not match the explanation the Secretary gave for his decision.”

Pardon?

The court concluded that “here the VRA enforcement rationale—the sole stated reason—seems to have been contrived.” In short, the court concluded that the secretary could reinstate the citizenship question and had good reason to reinstate the citizenship question, but the explanation he provided for why he did so was lacking, and that, in itself, is a fatal flaw worthy of sending the issue back to the Department of Commerce. Game over? Maybe not.

This is hardly the total victory the challengers sought. The challengers spent precious briefing space on why the secretary’s decision violated the Census Act and the enumeration clause of the Constitution. Indeed, Justice Stephen Breyer filed a separate opinion, agreeing with the court in part and disagreeing in part, in which Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan joined. Breyer explained how he believes “the Secretary’s decision—whether pretextual or not—was arbitrary, capricious, and an abuse of his lawfully delegated discretion.” In other words, to those four justices, the court did not go far enough.

On the other hand, Justice Clarence Thomas, writing in a separate opinion concurring in part and dissenting in part, in which Justices Neil Gorsuch and Brett Kavanaugh joined, stated that the court had gone too far. “Unable to identify any legal problem with the Secretary’s reasoning,” Thomas explained, “the Court imputes one by concluding that he must not be telling the truth.” Justice Samuel Alito, concurring in part and dissenting in part, went further and found that the court should not have undertaken a review of the secretary’s decision under the Administrative Procedure Act at all. “Throughout our Nation’s history, the Executive Branch has decided without judicial supervision or interference whether and, if so, in what form the decennial census should inquire about the citizenship of the inhabitants of this country.”

Not only is there disagreement among the justices regarding the court’s analysis, there is disagreement among commentators about the effect of the decision. There is a genuine question about whether the Commerce Department can satisfy the court’s concerns in time for the 2020 census and, if so, how. The Supreme Court said the district court’s remand was “warranted” but the district court found that “[t]he problem with Secretary Ross’s decision was not that it was inadequately explained, but rather that it was substantively arbitrary and capricious and ‘not in accordance’ with statutes that constrain his discretion.” Such a finding is at odds with the holding of the Supreme Court limiting the problem to the explanation given by the secretary.

Adding to the complication is that the Supreme Court decision only involved the challenges that were brought in the U.S. District Court for the Southern District of New York. There are separate challenges to the reinstatement of the citizenship question pending in the U.S. Courts of Appeals for the 9th and 4th Circuits, and in the U.S. District Court for the District of Maryland. Despite the New York court’s decision blocking the reinstatement of the question in mid-January and the Supreme Court’s agreement to hear the case this term, the other lower courts proceeded with their own fact-finding and ruled against the government.

The Supreme Court’s decision also followed a dizzying few weeks in an ordinarily quiet time for a Supreme Court case. In the weeks following the oral argument, which many commentators believed signaled a win for the government, the challengers engaged in guerilla warfare with a willing media regarding supposedly “bombshell” new evidence. The origins of the evidence rival any soap opera’s plot. Commentators questioned whether the challengers’ actions were intended to influence the justices or, at the least, cast a pall of illegitimacy over any decision that did not go the challengers’ way. Interestingly, none of the “new evidence” made its way into any of the opinions. There is no way to know the extent of the impact it had on the Supreme Court. The “new” evidence did result in the 4th Circuit’s remanding the cases before it to the District of Maryland for additional fact-finding just this week.

All for one simple question that the Supreme Court agrees is reasonable to ask.

Dale Ho, who argued the case for the organizational challengers, tweeted of the Supreme Court’s decision: “We did it.”  If by “it” he means “complicate an uncomplicated issue with rhetoric and fear-mongering,” then, yes, they did it.