Census symposium: A win for the deep state

Christopher J. Hajec is Director of Litigation at the Immigration Reform Law Institute, which filed an amicus brief in support of the administration in Department of Commerce v. New York.

The Supreme Court yesterday did not find the citizenship question that Secretary of Commerce Wilbur Ross decided to add to the census improper, find that Ross had any improper motive for including that question, or find that his decision to include that question was contrary to law. The court did not even conclusively preclude the administration from adding the citizenship question to the 2020 census, though it raised hurdles that might be hard to overcome.

What the Supreme Court did do was weaken the authority of President Donald Trump over his own subordinates in the executive branch, in a way that will diminish the influence that voters have over regulatory policy in Washington and enhance the power of unelected bureaucrats and federal judges. In this way, whatever ends up happening to the citizenship question, the court’s holding was a victory for the “deep state.”

In 2000, then-Harvard law professor (now Justice) Elena Kagan published a law review article called “Presidential Administration,” in which she praised the aggressive involvement of presidents – Presidents Ronald Reagan and Bill Clinton were her two main examples – in setting the regulatory policy of administrative agencies. Her main point was that such presidential direction was desirable because it increased democratic accountability. The people do not elect the heads of agencies, but they do elect the president. The only way the people have power over agency policy, then, is if the president has power over agencies. Diminishing the president’s power thus decreases the people’s power, and increases that of unelected bureaucrats. For his part, Chief Justice John Roberts, citing similar reasons, has based rulings in prior cases on the importance of protecting the president’s control over his subordinates.

Despite this, yesterday’s decision, with the chief justice writing the opinion for a 5-4 majority that included Kagan, was based solely on one point: that Ross’ stated reason for adding the citizenship question – that it would help the Department of Justice enforce the Voting Rights Act – seemed not to be his real reason, but only a pretext or rationalization for an action Ross was determined to take for some other reason. Like the district court before it, the Supreme Court did not know what the secretary’s real reason was, but the totality of the evidence suggested that the Voting Rights Act justification – which the Supreme Court found an adequate reason considered in itself – was not adequate under the circumstances because it appeared to be “contrived.”

In ruling this way, the Supreme Court went against the import of its own precedent and practice. For decades, the court has steadfastly ignored presidential influence on agency action. Rather than take notice of that influence, it has simply asked if the agency’s stated rationale for its action constituted “reasoned decisionmaking” under the standard of whatever statute the agency was carrying out. It never upheld an agency action because of presidential influence (real or merely suspected), nor overturned one because of presidential influence. In so ignoring presidential influence – by treating it as irrelevant – the court left its constitutionally intended potency intact and undisturbed.

The Supreme Court paid lip service to that sound tradition yesterday, saying:

[A] court may not set aside an agency’s policymaking decision solely because it might have been influenced by political considerations or prompted by an Administration’s priorities. Agency policy-making is not a “rarified technocratic process, unaffected by political considerations or the presence of Presidential power.” … Such 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).

Nevertheless, the Supreme Court dealt a body blow to the very principles it thus articulated by rejecting the rationale for Ross’ decision solely because it was (supposedly) “contrived.” After all, one (common) reason a head of an agency might make a given decision is simply that the president told him or her to do so. For example, no one doubts that when then-Secretary of Homeland Security Janet Napolitano issued the memo instituting Deferred Action for Childhood Arrivals, or DACA, she did so because President Barack Obama directed her to. Likewise, Ross might have wanted to add a citizenship question because Trump directed him to add one when he nominated him as secretary. If that is, indeed, what happened – and it is bound to be what will happen in many future cases of “pretextual” or “contrived” rationales for agency actions – then the court’s decision cut the cords of power that the Constitution affixes between presidents and their subordinate officials. Trump ordered an action taken, but Ross could not obey, even though he found and articulated a perfectly well-reasoned justification for the action under the applicable statute. That is not the way that power is or should be distributed under a Constitution that entrusts to one official – and one official only, the elected president – the power and duty to “take Care that the Laws be faithfully executed.”

What the Supreme Court’s decision means for the citizenship question is uncertain. Shortly after the decision was announced, Trump tweeted that he will ask his lawyers if he can delay the census – presumably to give Ross more time to compile another administrative record justifying a citizenship question, and the courts more time to evaluate his new decision. Yet it is hard to imagine that any new proffered reason would not be deemed by the court to be “pretextual,” too, especially if Ross had never mentioned it before.

What the Supreme Court’s holding means for Trump’s continued ability to govern may be dire. For example, it might weaken the authority of any “immigration czar” Trump may appoint to superintend and coordinate agency decisions in the president’s name, backed by his (now diminished) authority. And the decision can only embolden lower courts that seemed to have operated under the presumption that Trump – as the instrument of the supposedly depraved will of his supposedly “deplorable” supporters – cannot be allowed to govern as other presidents have. To the extent these effects materialize, the Supreme Court’s decision will turn out to have been a grave disservice to democracy.