by Jason Frey
For months, the Supreme Court has been considering Secretary of Commerce Wilbur Ross’ decision to add a citizenship question to the 2020 census. When the Secretary announced this change in March 2018, advocacy groups and the New York state government filed lawsuits against the Department of Commerce. The United States District Court for the Southern District of New York ruled that out of the three accusations leveled against Ross—1) a violation of the Enumeration Clause, 2) a violation of the Equal Protection Clause, and 3) a violation of the Census Act under 13 U.S.C.—only the first claim was invalid, and it allowed the others to continue through the courts. Then, the District Court concluded that Ross’s decision was illegal according to the Census Act and Administrative Procedure Act, even if his actions didn’t inherently violate a constitutional provision.
In January 2019 the case arrived at the Supreme Court. The justices considered whether the District Court was correct in commanding the Secretary to remove the question from the census and in ordering investigation outside the administrative record—i.e. gathering personal emails, conference transcripts, meeting schedules, etc.—into Ross’ decision-making when there is no evidence that he disbelieved the data before him.
Chief Justice Roberts, writing for the majority, partially affirmed the decision of the District Court, partially reversed it, and remanded the case to the Department of Commerce. This is a fairly complex opinion, so I will try my best to lay out each part of the ruling and explain the nuances of the suit’s legal standing.
Roberts begins by affirming the Court’s ability to review this issue under its jurisdiction. He refers to Article III of the Constitution, which “limits federal courts to deciding ‘Cases’ and ‘Controversies,’” defined as disputes in which “at least one plaintiff must have standing to sue.” In order to have legal standing, one of the plaintiffs must show actual or imminent injuries resulting from the defendant’s actions. Here, if the census question were added, response rates were expected to decrease significantly. Roberts agreed that this predicted decrease counts as an imminent injury for the plaintiffs (as even a 2% drop in population count can disqualify a state from federal funding), so they have legal standing to sue. This was a major point of contention in the oral arguments, with the petitioners attacking the statistical models generated by the Census Bureau. Roberts also rejected the argument that, because it’s illegal to not respond to the census, the Department of Commerce isn’t responsible for ramifications of the citizenship question.
The Chief Justice then reverses part of the District Court’s ruling by holding that Ross didn’t violate the Enumeration Clause. Roberts relies on precedent and Congress’s right to administer the census to conclude that the Secretary was within his power to conduct the census how he wished. In deciding this, Roberts contradicts calls to use a “reasonable relationship” standard to evaluate Ross’ action. A “reasonable relationship” is any action that is logically connected to the accomplishment of a certain task—in this case, that standard would review all of Ross’ actions based on whether or not they further the goal of counting the total U.S. population. The majority found this standard unreasonable because it would invalidate almost any question asked on the census, regardless of its connection to the response rate. Instead, Roberts contended that Congress’ long history of delegating census administration to the executive branch and ingrained practices in the federal government give Ross leeway to count the population how he sees fit.
To prove that the Court can review an administration’s performance, Roberts affirms the judgement that the Administrative Procedure Act allows the Court to rule on certain actions. Though conceding that there is an exception for some procedures, Roberts insists that such procedures have been limited to “certain categories of administrative decisions that courts traditionally have regarded as ‘committed to agency discretion,’” of which conducting the census is not one.
Roberts then reverses the ruling that the Secretary irrationally and unlawfully decided to add the question to the census. The District Court concluded that the Secretary of Commerce “arbitrarily and capriciously” ordered the Department of Commerce to reinstate the citizenship question, but Roberts completely denies that interpretation. In fact, the Chief wrote that Ross fairly weighed the four options offered to him by the Census Bureau on how to collect the information (each of them some combination of using administrative records or directly asking the question) and deduced that though using on-hand records is fairly accurate, it was not accurate enough. Roberts even included a slight dig at Justice Breyer, denouncing the Associate Justice’s opinion that Ross’s decision was arbitrary and capricious and calling it “pessimistic.”
The plurality next reverses the finding that the Secretary violated the Census Act. In the original trial, the District Court agreed with the plaintiffs that Ross violated 13 U.S.C. §6(c) and §141(f); for some background on those specific provisions, check out my previous article on this case. However, Roberts argued that for the same reasons that the Secretary’s decision wasn’t arbitrary and capricious, it also complied with the requirement found in §6(c) that the Secretary of Commerce must use administrative records “to the maximum extent possible.” The Chief Justice believed that because Ross considered multiple solutions for collecting citizenship information, he was justified in using administrative records solely as a supplement to the census responses, which satisfies the condition of §6(c). The Court also looked at §141(f), which requires the Secretary to report to Congress about the census in advance. Because Ross didn’t inform Congress about the citizenship question in his March 2017 report, the District Court found that he had violated §141(f). Roberts disagreed, writing that Ross’s March 2018 report met the requirements of the law.
Finally, the Supreme Court had to answer the second question of this case: whether a District Court may “order discovery outside the administrative record to probe the mental processes of the agency decision maker … when there is no evidence that the decision maker disbelieved the objective reasons in the administrative record, irreversibly prejudged the issue, or acted on a legally forbidden basis.” This is by far the most fascinating part of the opinion, and it’s also where the Court definitively blocked the citizenship question from the 2020 census.
Roberts recognized that the District Court invoked an “exception to the general rule against inquiring into ‘the mental processes of administrative decisionmakers,’” for the court believed that there was “strong showing of bad faith or improper behavior.” Here, while Roberts acknowledges that the District Court’s order to gather more information may have been premature, it was necessary because Ross’ stated reason for collecting citizenship data—to enforce the Voting Rights Act—was contrived. He seemingly agrees with Justice Kagan’s oral argument comment that this reasoning seemed like a “post-hoc rationalization.” Roberts concludes the opinion by affirming the District Court’s probe into extra-administrative record and at the same time calling for “reasoned decisionmaking.”
I think that Roberts did the right thing here. This opinion was clear, direct, and reasoned. I commend him for balancing both the Secretary’s power to make administrative decisions and the cost of allowing this decision to proceed. The only part of the opinion that I disagree with is Roberts’ assertion that Ross did not violate §6(c). After reading the briefs and listening to the oral arguments, it seemed to me like Ross did everything in his power to choose the option that limited the use of administrative records, contrary to the statistical evidence presented to him. For example, the Department of Commerce argued that because Ross didn’t allow the final statistical models to be generated — and as a result, it couldn’t produce peer-reviewed margins of error — it was unacceptable to use the records at all. This argument is nonsensical. Apart from that, it seems like Department of Commerce v. New York has come to a logical end.