Census symposium: Unusual facts make for unusual decisions

Nicholas Bronni serves as the solicitor general for the state of Arkansas, which co-authored an amicus brief joined by 14 other states supporting the government in Department of Commerce v. Southern District of New York.

When the Supreme Court weighs in on an important topic, the decision will usually impact future cases. But the Supreme Court’s decision in Department of Commerce v. New York is likely to have remarkably little precedential effect. It also tells us very little about when courts can review agency decisionmaking for pretext and improper motive. At the end of the day, that is probably a consequence of the unusual way in which this case was litigated, with both sides agreeing to expand the administrative record dramatically.

But it’s still a surprising result. That decision was expected to be one of this term’s blockbusters. At a minimum, it was supposed to decide whether the government could ask about citizenship on the decennial 2020 census and potentially for decades to come. There was also hope that case might tell us something about the standard for determining whether an agency’s proffered rationale is a pretext. Rarely is a claim of pretext so squarely presented. And it could have said something about the standard for determining whether a challenger has made the “strong showing of bad faith or improper behavior” that warrants inquiring into “the mental processes of administrative decisionmakers.” It did none of those things. Instead, we got a splintered decision based on the “unusual circumstances” of this case.

Granted, the decision is remarkable in two respects. It represents the first time that anyone has met the “strong showing” requirement set forth in Citizens to Preserve Overton Park, Inc. v. Volpe. And it invalidated otherwise lawful and reasonable agency action based on pretext. It will undoubtedly be cited countless times for both propositions.

Despite that, the case itself is remarkably narrow and fact-specific. Indeed, as Justice Clarence Thomas aptly put it, we got “an aberration—a ticket good for this day and this train only.”

In fact, to borrow Thomas’ analogy, the destination station remains unclear because the Supreme Court left for another day the question of whether the government can ask about citizenship. We do know that the enumeration clause of the Constitution does not bar the government from asking about citizenship as part of the census. That is not really surprising given that “demographic questions have been asked in every census since 1790, and questions about citizenship in particular have been asked for nearly as long.” And in the long run, that might turn out to be the most significant part of this decision, since it is directly relevant to Alabama’s pending litigation over the so-called Residence Rule that requires counting foreign nationals as residents of their usual state of residence, regardless of whether they are legally present.

We also know that the secretary’s decision to include the question was not—at least in the abstract—arbitrary, capricious and unsupported by evidence. Indeed, the court stressed that the evidence before Commerce Secretary Wilbur Ross suggested that both including and not including the question had downsides and that “in the face of uncertainty” the choice between various alternatives “was the Secretary’s to make.” Consequently, the court held that in invalidating the question on traditional administrative law grounds, the district court had “improperly substituted its judgment for that of the agency.” Along the same lines, we know that the secretary’s decision did not violate the Census Act itself.

It remains to be seen whether, in light of the court’s pretext decision, the Commerce Department can still move forward. Chief Justice John Roberts’ controlling opinion makes clear the court did not mean to suggest “that the agency decision here was substantively invalid.” Rather, the decision is exceptionally narrow. At the end of the day, it merely concludes that assisting the Department of Justice with Voting Rights Act enforcement—“the sole stated reason” for the question—“seems to have been contrived.”

“In these unusual circumstances,” it is far from impossible for the agency to justify its conclusions on remand. Indeed, even if, as the challengers suggest, any number of influences might have factored into the final decisionmaking process, that is not unusual. To the contrary, as the court explained, agency decisions “are routinely informed by unstated considerations of politics, the legislative process, public relations, interest group relations, foreign relations, and national security concerns (among others).” And even the most cursory review of the pleadings suggests any number of reasons why the agency might want accurate demographic information. The only question is whether there is still time for the agency to give those reasons.

In addition to leaving the ultimate question unresolved, the decision does not articulate any standard for determining pretext or for conducting sweeping discovery into agency motivations. Rather, Overton Park remains the best articulation of the relevant standard. That’s a product of the unusual nature of this case and how the pretext issue bubbled up and was litigated.

Indeed, in every sense, this case was atypical from the start. Normally, the administrative record is the entire record. As many agency lawyers (and petitioners) have learned over the years, for better or worse, that is usually the rule. Yet everyone seemed to agree that wasn’t exactly true here.

Rather, after the case began, the government filed a supplemental memorandum elaborating on the secretary’s decisionmaking process in including the citizenship question. That prompted the challengers to ask the government to supplement the record with internal deliberative materials. The government did not object, and the parties stipulated to adding more than an additional 12,000 pages of internal deliberative materials. The challengers also demanded additional extra-record discovery, including depositions of Ross and Acting Assistant Attorney General for the Civil Rights Division John Gore. The latter deposition went forward; the former did not.

Such materials are not normally part of the administrative record. Nor—as Roberts made clear—should they be. Quite the contrary, lower courts are normally admonished to avoid such intrusions into the inner workings of co-equal branches. That is, of course, partly a product of separation of powers principles. It is also far from surprising given, again, that decisionmakers can arrive at decisions for any number of reasons. Likewise, cabinet officers—just like junior bureaucrats—come with their own experiences and preconceived opinions that influence decisionmaking. As someone who spent more than five years at a federal agency, I wouldn’t dare dispute that junior staffers have their own way of looking at things.

Yet here, those internal deliberations (again, more than 12,000 pages of them) were part of the record. Thus, “unlike [in] a typical case in which an agency may have both stated and unstated reasons for a decision,” the record contained much more information on those internal deliberations. That “unusual circumstance” meant that—in contrast to every other informal decisionmaking case—the district court below and the justices on appeal had a much larger record that allowed (and on some views required) them to scrutinize and probe those justifications. Facing that larger record and “viewing the evidence as a whole,” the Supreme Court concluded “that the decision to reinstate a citizenship question cannot be adequately explained in terms of DOJ’s request for improved citizenship data to better enforce the VRA.”

Moreover, although one might dispute whether—to use Roberts’ language—this case presented a ball or a strike, no one would argue that in reviewing agency decisions courts should be required to “accept[] contrived reasons [that] would defeat the purpose of the enterprise.” Certainly, we can all agree that review should “be more than an empty ritual.”

At the same time, that certainly does not hint that courts should normally—or even rarely—so dramatically expand the administrative record in response to bare allegations of pretext and improper motive. Roberts’ controlling opinion deftly avoids taking any definitive position on the (uncontested) merits of the expansion even in this case, let alone setting a standard for doing so in the future. Uniquely underscoring that point, Roberts’ opinion tellingly observes, “It is rare to review a record as extensive as the one before us when evaluating informal agency action—and it should be.” And it is even less committal about the additional extra-record discovery, though it is absolutely clear that discovery was inappropriate based on the bare allegations presented to the district court.

It would be wrong, then, to suggest—as countless practitioners undoubtedly will—that this case changes the standard for looking examining an agency’s motives and obtaining discovery. Very much to the contrary, the court’s analysis underscores just how hard it is to justify either action because there will rarely be such an extraordinarily extensive administrative record. Indeed, it’s highly unlikely “these unusual circumstances” will exist again.