U.S. Supreme Court

SCOTUS upholds judge's decision to ask for better explanation on census citizenship question

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On Thursday, the U.S. Supreme Court upheld a district court’s decision to ask the Commerce Department for a better explanation of its decision to add a citizenship question to the 2020 census.

The court said the enumeration clause gives the commerce secretary authority to add the citizenship question, but that decision can be reviewed under the Administrative Procedure Act to determine whether the decision was arbitrary and capricious.

In this case, the court said, the district court was justified in its decision to return the case to the Commerce Department.

Chief Justice John G. Roberts Jr. wrote the opinion for the court. Liberal and conservative justices joined different parts of his opinion to create majorities.

“We do not hold that the agency decision here was substantively invalid,” Roberts wrote. “But agencies must pursue their goals reasonably. Reasoned decision-making under the Administrative Procedure Act calls for an explanation for agency action. What was provided here was more of a distraction.”

The Supreme Court put the case on a fast track amid a June 30 deadline for printing the census forms for 2020. SCOTUSblog points out in its early coverage, however, that it may be possible to still print the forms after that date.

Commerce Secretary Wilbur Ross had said he was adding the citizenship question in response to a request from the Department of Justice for better citizenship data to assist in its enforcement of the Voting Rights Act of 1965. Those challenging the citizenship question have argued that reason is pretextual.

Roberts acknowledged “a disconnect between the decision made and the explanation given” and said “contrived reasons” should not be accepted by the courts.

“If judicial review is to be more than an empty ritual, it must demand something better than the explanation offered for the action taken in this case,” he wrote.

The American Civil Liberties Union told the Supreme Court in a letter last month that new evidence suggests Ross added the citizenship question to create an election advantage for Republicans when census data is used in redistricting.

The ACLU cited information on computer files discovered after the death of a redistricting specialist indicating he helped ghostwrite the DOJ letter requesting the question.

Roberts based his decision, however, on evidence uncovered by a federal judge during discovery in the case.

Evidence showed that Ross considered adding the citizenship question shortly after his confirmation, that he tried to solicit requests for citizenship data from other agencies, and that he eventually persuaded the DOJ to ask for the citizenship question to help enforce the Voting Rights Act.

In a partial dissent, Justice Clarence Thomas wrote that the majority “has opened a Pandora’s box of pretext-based challenges in administrative law.” His opinion was joined by Justices Brett M. Kavanaugh and Neil M. Gorsuch.

Thomas said Ross had provided a reasoned explanation for his decision, and “that ought to end our inquiry.”

In a separate partial dissent, Justice Samuel A. Alito Jr. said the federal judiciary “has no authority to stick its nose into the question whether it is good policy to include a citizenship question on the census or whether the reasons given by Secretary Ross for that decision were his only reasons or his real reasons.”

A federal judge in Manhattan had ruled in January that Ross acted arbitrarily in violation of the Administrative Procedure Act when he added the question. But the judge found no violation of the due process clause because the plaintiffs did not prove that Ross was motivated by discrimination against noncitizens and minorities.

The district court vacated Ross’ decision and enjoined him from reinstating the citizenship question until he cured his legal errors.

A partial dissent by Justice Stephen G. Breyer, joined by the court’s other liberals, would have upheld the federal judge’s decision finding a violation of the Administrative Procedure Act.

“The secretary’s decision—whether pretextual or not—was arbitrary, capricious and an abuse of discretion,” Breyer said.

The case is Department of Commerce v. New York.

Hat tip to SCOTUSblog for its early coverage of the decision.

Related articles:

ABAJournal.com: “SCOTUS told of new evidence in challenge to census citizenship question”

ABA Journal: “Court considers whether inquiry about citizenship belongs on the U.S. census”

ABAJournal.com: “Supreme Court agrees to hear challenge to citizenship question on census”

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