In what was almost certainly an effort to discourage participation from immigrant communities, Commerce Secretary Wilbur Ross announced last year that he would add a question to the 2020 Census questionnaire asking if each person in the United States is a citizen — a question that the Census has not asked since the Jim Crow era.
On Tuesday, a federal district court held that this citizenship question must be removed from the Census form. The case is New York v. United States Department of Commerce.
The Trump administration was discouraged from including this question by an array of census experts from both political parties — including top officials from the Reagan and Bush I administrations — who concluded that it “could seriously jeopardize the accuracy of the census,” because “people who are undocumented immigrants may either avoid the census altogether or deliberately misreport themselves as legal residents.”
The administration’s own Census Bureau warned that adding such a question “is very costly, harms the quality of the census count, and would use substantially less accurate citizenship status data than are available from administrative sources.”
Secretary Ross ignored this advice and included the question anyway. And as Judge Jesse Furman lays out in a 277-page opinion striking down the citizenship question, the Trump administration then went to embarrassing lengths to find someone — anyone — who would defend their attempt to rig the Census.
At one point, for example, a Trump administration official emailed the American Enterprise Institute (AEI), a conservative think tank, asking if someone at AEI “can speak to the pros of adding such a question.” The same day, a senior AEI employee responded that “none of my colleagues at AEI would speak favorably about the proposal.”
Judge Furman’s opinion presents Ross and his team as grossly incompetent. They seemed oblivious to their legal obligations, often appeared unaware of what their own advisers were telling them, and even appear to have outright lied about why they included the citizenship question.
Furman’s decision will almost certainly be reviewed by the Supreme Court, where the plaintiffs in this lawsuit still face an uphill battle. Three of the Court’s Republicans already tried to shut down Furman’s inquiry into the Census.
But Furman’s opinion is detailed, cautiously reasoned, and full of details that expose the political appointees who supported the citizenship question as rank incompetents. There is no guarantee that Furman’s opinion will survive contact with the Supreme Court — but Furman did his utmost to preemptively shame any judge who may try to reverse him.
Arbitrary and capricious
When federal agencies set policy, they must comply with a federal statute known as the Administrative Procedure Act (APA) — a law prohibiting agencies from taking “arbitrary” or “capricious” action. The APA does not simply require agencies to follow the law, but requires them to conduct a rigorous process that considers sound evidence and that is transparent about the agencies’ objectives.
As the Supreme Court held in Allentown Mack Sales & Service, Inc. v. NLRB, “not only must an agency’s decreed result be within the scope of its lawful authority, but the process by which it reaches that result must be logical and rational.”
Furman’s opinion explains that the Trump administration outright violated two federal laws when it added the citizenship question, and that the process it used to approve this question was a procedural trainwreck.
A provision of the Census Act, for example, requires the Census to “‘acquire and use information’ derived from administrative records ‘instead of conducting direct inquiries’ to the ‘maximum extent possible.’” Thus, the Census may not seek information through a questionnaire if it could obtain that information through government records. Yet when Census officials told Ross that existing government records would do a better job of identifying who is a citizen than a citizenship question on the Census, they were ignored.
Similarly, another provision of federal law requires “that the Secretary report to the relevant congressional committees, at least three years before the ‘census date’ for a given census, all ‘subjects proposed to be included, and the types of information to be compiled.’” Yet Ross did not give Congress the required three years notice that he intended to include a citizenship question.
Judge Furman’s opinion also reveals a slipshod process at the Department of Commerce, where senior officials often acted as if damaging evidence simply did not exist. To give one example:
Secretary Ross’s explanations for his decision [to add the citizenship question] were unsupported by, or even counter to, the evidence before the agency. For instance, he sought to justify his decision on the ground that “no one provided evidence that reinstating a citizenship question on the decennial census would materially decrease response rates.” But that assertion is simply untrue. The Administrative Record is rife with both quantitative and qualitative evidence, from the Census Bureau itself, demonstrating that the addition of a citizenship question to the census questionnaire would indeed materially reduce response rates among immigrant and Hispanic households.
Among other things, “the Census Bureau calculated in January 2018 that adding a citizenship question to the 2020 census was likely to lead to a 5.1% differential decrease in self-response rates among noncitizen households.”
On top of these errors, Judge Furman’s opinion also includes an entire section that — while shying away from using such charged language — walks right up to the edge of accusing Secretary Ross of lying.
Ross claimed that the real reason for adding the citizenship question is because the Justice Department requested it to help with Voting Rights Act enforcement. As Furman writes, however, “the evidence is clear that Secretary Ross’s rationale was pretextual — that is, that the real reason for his decision was something other than the sole reason he put forward in his Memorandum, namely enhancement of DOJ’s VRA enforcement efforts.” Among other things, according to Furman, the evidence shows that “Secretary Ross had made the decision to add the citizenship question well before DOJ requested its addition in December 2017.”
The dog that didn’t bark
It’s also worth noting what Furman did not hold in his opinion. Some of the plaintiffs in this case argued that the citizenship question was unconstitutional because the decision to add it was motivated by racist or other impermissible intentions. To this claim, Furman writes that “although the Court finds that Secretary Ross’s decision was pretextual, it is unable to find, on the record before it, that the decision was a pretext for impermissible discrimination.”
Furman adds that he is unable to find that Ross acted with invidious intent because an October order from the Supreme Court prevented plaintiffs from deposing Ross. Without that deposition, it is difficult to probe what was in Ross’ heart when he added the citizenship question.
Yet while this holding leaves the plaintiffs without one ground for their victory, Furman’s caution may serve them well in the long run. Republicans on the Supreme Court are extraordinarily hostile to claims that a public official acted with racist intent. Indeed, three members of the Court — Justice Clarence Thomas, Justice Samuel Alito, and Neil Gorsuch — all tried to halt this trial before Furman could reach a decision.
But the Supreme Court’s Republicans tend to be much more sympathetic to claims that a federal agency violated the Administrative Procedure Act. By shying away from the hot-button constitutional issue, in other words, Furman made it more likely that his decision will survive additional review.
Furman’s order will appeal first to the United States Court of Appeals for the Second Circuit. Given the national importance of the decennial census, however, it is all but certain that this case will ultimately be reviewed by the Supreme Court. The question is whether all five of the Supreme Court’s Republicans will be willing to look the other way at the haphazard process the Trump administration used to approve the citizenship question.