“Our review is deferential, but we are ‘not required to exhibit a naiveté from which ordinary citizens are free,’” Chief Justice John Roberts wrote for a majority of the Supreme Court today in Department of Commerce v. New York, the closely watched case testing whether the Trump administration could add a citizenship question to the 2020 census questionnaire.
The chief justice was quoting not a Supreme Court ruling but an opinion by the late Henry Friendly, a legendary judge of the Second Circuit Court of Appeals—for whom Roberts clerked after graduating from law school. Some years ago, I saw Roberts speak feelingly about the influence of Friendly on his life. He could have written that sentence a lot of ways; he brought his respected mentor in to tell Secretary of Commerce Wilbur Ross, who pushed for the citizenship question, “I didn’t want to be dragged into this, but the shamelessness of your lies is too much even for me to take.”
This is a huge setback for the administration.
Let’s understand what the Court, in its fractured opinion, decided. It did not decide there could be no citizenship question on the census, which would have fulfilled all the challengers’ hopes. Instead, it said that a citizenship question might or might not be a good idea, but to include it, the Commerce Department needs to explain its reasoning—its actual reasoning, not something cooked up after the fact. And, most important, it remanded the case to the U.S. District Court for the Southern District of New York, where Judge Jesse Furman awaits the parties. And if you think Roberts was displeased with the Commerce Department, wait until you hear from Furman. Though Furman has a number of options, he will probably order the case sent back to the Commerce Department for the assemblage of a new “administrative record”—meaning a voluminous file of factual material the agency relied on to conclude that the question was needed. Once it is done, Furman could be expected to take a close look indeed at the new explanation. (If past performance is predictive, Solicitor General Noel Francisco will ask the Supreme Court to grant a writ of certiorari immediately and hear the case on an emergency basis. That may happen. The problem for Francisco is that his office has, since Donald Trump took office, begun to treat the Court as an emergency room for sick Trump programs, demanding that it shut down any unfavorable litigation before it starts. At some point, that will wear thin.)
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All of this will take time. According to the department’s statements, it has no time—the form must be sent to the printer within days or weeks. If that is true, then the citizenship question is dead. The record suggests that October may be the drop-dead date—but that waiting until then will cost the government a good deal of money. Nonetheless, one assumes, the government would wait until then—because, you see, the political leaders of this administration want the question very badly indeed.
To understand why, let’s quickly review the history. After taking office in 2017, Ross began pressing his staff to include a question on the form to be filled out by each head of household. For each member of the household, it would ask, “Is this person a U.S. citizen?”
As they say on talk radio, what’s the problem? Joe Taxpayer has a right to know who the citizens are, amirite? The problem is twofold.
First, as the professional staff at Commerce immediately pointed out, including that question would cause a significant number of respondents to throw the form away—fearing that ICE will get the form and show up to haul family members away. Though census data are by law closed to other government agencies, most people don’t necessarily know that; and in the present atmosphere of official hostility toward immigrants, they may simply not believe it. Meanwhile, the government already has a means of collecting citizenship data, called the American Community Survey, which is conducted every year.
The result of a citizenship question on the form, then, would be a significantly less accurate census. An undercount of noncitizens would, in turn, affect the economy and the political system. Smaller numbers in large, diverse cities will mean less federal funding for important programs; it will also mean fewer members of Congress, and fewer electoral votes, for high-immigrant-population states. By a bizarre coincidence, those states trend Democratic; with an undercount, money and power will flow toward communities that are whiter—and more Republican.
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Second, the secretary doesn’t usually sit under an apple tree and let questions fall on his head. He needed another agency to ask for the question and explain why it would help. But no agency volunteered this service. Instead of responding to a real need, Ross had his staff call around and ask other agencies pretty please to request a citizenship question. Homeland Security told him to pound sand. So did the Department of Justice, at first—until Ross appealed directly to then–Attorney General Jeff Sessions. Justice has not filed a single case to enforce the Voting Rights Act since Trump’s inauguration. But after the Wilbur-Sessions confab, Justice discovered an aching need for citizenship data to allow it to enforce the VRA.
New York and other state and local governments, joined by immigrants’ rights groups, filed suit, arguing that the secretary’s action was “arbitrary and capricious,” a special term in administrative law meaning that there really is no good reason for it. While agencies and their heads have a lot of discretion, the courts don’t usually allow them to do things just because they feel like it—or because it’s so fun to own the libs.
The government submitted a long record containing the VRA explanation. That record, everybody in the case now agrees, was tarted up. It omitted the real discussions. The district court ordered more discovery. Then it ordered top officials to give deposition testimony. At this point, the Supreme Court stepped in—but only to block one of the unusual depositions.
When Furman decided the case in January, his detailed, 272-page opinion scalded Ross and his political crew. He did not attribute the decision to politics; but he did say that their proffered reasons were, one and all, phony.
The Supreme Court, prodded by the Census Bureau deadline, took the case directly from the district court, and heard oral argument at the tail end of the term, in April. Observers concluded that the conservative majority would accept Ross’s explanations and hold that Furman was wrong to look behind them.
But that prediction held only for four of the conservatives—Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh dissented on the heart of the matter.
Roberts, however—perhaps with the ghost of Judge Friendly at his elbow—found he could not swallow the government’s argument. He was careful to avoid a word like lie. Writing for himself and the four moderate liberals (Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan), he wrote, “We share the District Court’s conviction 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.” Then he added:
Altogether, the evidence tells a story that does not match the explanation the Secretary gave for his decision. In the Secretary’s telling, Commerce was simply acting on a routine data request from another agency. Yet the materials before us indicate that Commerce went to great lengths to elicit the request from DOJ (or any other willing agency). And unlike a typical case in which an agency may have both stated and unstated reasons for a decision, here the VRA enforcement rationale—the sole stated reason—seems to have been contrived.
We are presented, in other words, with an explanation for agency action that is incongruent with what the record reveals about the agency’s priorities and decision-making process.
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“Incongruent” is not quite “pants on fire,” but I think even the secretary of commerce can read between those lines.
The Court’s decision, as I said, was splintered. The government wanted the case dismissed for lack of standing, or to have the Court hold that census decisions couldn’t be reviewed in court. A majority rejected both arguments (the decision on standing was unanimous). The challengers, however, had hoped the Court would spike the whole idea of a citizenship question; it could have done that by holding that an inaccurate count would violate the Constitution’s requirement of an “actual enumeration” of the population every 10 years, or by a statutory holding that, under the facts of this case, there was no good argument for a citizenship question. The conservatives, including Roberts, scotched both arguments. A citizenship clause, they wrote, might be just peachy if the record supports it with genuine reasons. The government will rely on that language as it asks Furman to review the new administrative record it must hastily assemble.
The Perils of Pauline saga of the citizenship question will thus persist at least through the summer. There’s no reason to believe the government will give up; indeed, at 1:37 p.m., President Trump tweeted that he had “asked the lawyers if they can delay the census, no matter how long” until Commerce can add the question. That idea seems like quite a stretch. Both the Constitution and the Census Act say the count must take place every 10 years, with no provision for delay. Furman likely doesn’t have the power or inclination to accommodate Trump. And while the administration could run to the Supreme Court, it has put its store of goodwill in jeopardy by its insistence on haste in this litigation.
So the government may not give up, but it may just run out of time.
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