//  7/1/19  //  Commentary

Over the past few days, I’ve seen a lot of commentary—including from some lawyers whose opinion I respect a great deal—asserting that the Supreme Court’s opinion in Department of Commerce v. New York will prevent a citizenship question from appearing on the 2020 census. Many of these articles and tweets have celebrated the Chief Justice for his bravery, principle, and (long-delayed) unwillingness to accept pretextual reasons for a Trump Administration policy. To hear them tell it, this decision was a huge win.

Like Rick Hasen (here), Steven Mazie (here), Mike Dorf (here), and some others, I’m skeptical. Indeed, I think it’s extremely likely that the citizenship question will appear on the 2020 census—and the Chief intended precisely that result. Let me explain why. 

On first glance, the Chief’s opinion is baffling.  The ultimate disposition is vacatur of the agency action and remand to the agency for a reasoned explanation. In light of that disposition, there is little need to say much more: the Court could simply explain that the agency’s reasoning was pretextual and then vacate and remand.  Yet that doesn’t occur until Part V of the opinion. In Parts I and II, the Chief appropriately addresses threshold questions about standing and the availability of judicial review. Part III, however, decides a major constitutional issue whose resolution is not necessary to the Court’s own outcome. Part IV does the same for a slew of statutory and administrative law issues.

Especially in light of the Chief’s stated preference for minimalist decisions, this raises an important question: why did the Court decide these constitutional, statutory, and regulatory questions, none of which it needed to decide to vacate and remand?

One view is that the Chief changed his vote, presumably in response to evidence of racist motives, and didn’t do a good job of revising his opinion to reflect the new disposition. I’m unconvinced: the Chief is too talented a lawyer, and too strategic a judge, to act so sloppily. He wouldn’t have issued this opinion if he didn’t stand behind it.

A different view is that the Chief knows these proceedings will accelerate quickly and wanted to get ahead of things. Again, I’m unconvinced: the Chief could have written these parts of the opinion and held them in reserve for when an appeal arrives at the Court in which the relevant issues need to be decided. To the extent he wanted to signal his views, he could have done so without issuing a full-blown advisory opinion.

A final view is that the Chief wanted the agency to understand the scope and parameters of its own authority on remand—and wanted to define that authority in the broadest possible terms. As I see it, this is by far the most plausible view.

Assuming that is so, we have a clear sense of the Chief’s thoughts on the underlying issue. In the constitutional section of his opinion, he emphasizes the long history of asking demographic questions (including about citizenship) and knocks away any suggestion that the Enumeration Clause prohibits such an inquiry. In the statutory section, he rejects arguments that Secretary Ross violated the Census Act by failing to inform Congress in a timely manner and failing to consider alternative administrative methods of acquiring citizenship data. In the APA section, he concludes that the evidence before Secretary Ross supported the decision to use a citizenship question to obtain accurate citizenship information—thus rejecting powerful arguments that this decision was arbitrary and capricious because it would demonstrably result in a less accurate citizenship count.  

The result is a Supreme Court opinion that eliminates nearly every constitutional, statutory, and regulatory objection that has been raised against the citizenship question, and that describes the decision to include this question as reasonable in light of empirical uncertainty about the best way to calculate the total number of citizens.  

Ultimately, the Chief’s only complaint is that Ross offered a rationale for this decision that—to borrow a phrase from Scalia—taxes the credulity of the credulous:

We are presented . . . with an explanation for agency action that is incongruent with what the record reveals about the agency’s priorities and decisionmaking process. It is rare to review a record as extensive as the one before us when evaluating informal agency action—and it should be. But having done so for the sufficient reasons we have explained, we cannot ignore the disconnect between the decision made and the explanation given. Our review is deferential, but we are “not required to exhibit a naiveté from which ordinary citizens are free.” United States v. Stanchich, 550 F. 2d 1294, 1300 (CA2 1977) (Friendly, J.). The reasoned explanation requirement of administrative law, after all, is meant to ensure that agencies offer genuine justifications for important decisions, reasons that can be scrutinized by courts and the interested public. Accepting contrived reasons would defeat the purpose of the enterprise. 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

Before I explain why I think this holding is less exciting than it might seem, I should emphasize that it really is a big deal, both in its own right and in the history of administrative law. This is the first time an agency action has ever been set aside by the Court as pretextual. The Court’s warranted unwillingness to accept an obvious lie from the Trump Administration marks an important moment in the rule of law.

But ultimately, that moment will pass. 

Now that the matter has been remanded back to the agency, Secretary Ross need only issue a new memorandum explaining why he wants to include a citizenship question. In that memo, he can assert that the original reason was legitimate (to save face) and then add that the decision is also justified by a number of other goals—e.g., to have the best available count of all citizens for general government purposes, or to gather data that helps states redistrict based only on citizen voter age population (CVAP) (as may be permissible under Evenwhel v Abbot), or to follow global practice or UN standards, or any other reasons he can gin up. The Court’s opinion suggests that Ross has considerable discretion in deciding whether and why to ask a citizenship question, so I doubt he and his lawyers will struggle to come up with reasons for that outcome. (Indeed, following the partisan gerrymandering cases, I can’t help but wonder if a crude desire to achieve partisan goals might itself be accepted by the Court as sufficient, though I would be surprised if Ross were quite that candid about his goals.)

After Ross issues a new memorandum, the parties will once again litigate whether his reasons comply with the APA. But now they will do so on a battleground that the Chief has tilted sharply in Ross’s favor—and from which the Chief has removed most of the plaintiffs’ arguments. 

Underlying this dispute will be a more fundamental question about what, exactly, the Court expects from Ross. When an agency action is vacated, usually the agency need only fix some procedural error or revise the rule to account for considerations that it did not address. But here, the agency action was vacated on grounds of pretext.  And in doing so, the Court did not say that Ross's reasons were improper or bigoted; it merely said that his stated reasons were "a distraction." What does it even mean to fix that? So far as I can tell, there isn't a clear answer under settled administrative law doctrines. Can Ross prevail only by persuading a court that he has now given the actual reasons that motivated his original decision? Is he allowed to start on a blank slate? Can he withdraw the original memo and issue a brand new one? Does the original pretextual decision taint any subsequent decisions—and, if so, how can that taint be cleansed?

These are difficult questions, which Mike Dorf addresses in some detail here. If I had to guess, though, I think it's highly unlikely that Roberts believes Ross is categorically prohibited from adding a citizenship question to the 2020 census. He wouldn't have remanded to the agency, and gone through all the trouble of rejecting every other legal argument at hand, if there were nothing the agency could do to save the challenged decision on remand. It is safe to anticipate that Ross and his lawyers will now offer a battery of reasons in an effort to justify the inclusion of a citizenship question—and that Roberts will be decidedly inclined toward accepting at least one of those reasons as sufficient to support the agency's decision. 

You might wonder whether there is enough time for all that to occur. After all, didn’t DOJ insist that everything had to be decided by June, so that the census could be printed?

Yes, it did. But the plaintiffs have long argued that October, not June, is the real deadline. And regardless of who was right, the administration likely will find a way to push things back a few months if necessary to add the citizenship question—an outcome that Trump, Ross, and many others clearly view as a priority. (In fact, Trump issued a tweet last week calling for a delay in the census, which signals his overriding commitment to including the question and his utter lack of regard for the particular reasons give by his Commerce Secretary.) The result will be an inversion of the parties' positions, with DOJ embracing the October deadline and the plaintiffs seeking to hold DOJ to its word that nothing could happen after June. My instinct is that courts will accept DOJ's representation that the forms can be printed later in 2019, rather than treating the government as estopped from such representations by virtue of its earlier statements.

Inevitably, litigation over the adequacy of the new, “genuine” justification for Ross’s decision will return to the Supreme Court. At that point, we know there are already four votes in Ross’s favor (Thomas, Alito, Gorsuch, Kavanaugh)—and I’d wager that Roberts will provide a fifth vote to stay injunctions against including the citizenship question.

If that occurs, this story would echo aspects of the travel ban saga: (1) the Trump Administration issues a policy that would float except for its bogus and seemingly bigoted rationale; (2) the policy is blocked by federal courts on grounds relating to the nature and adequacy of its stated rationale; (3) the administration launders its animus through minor modifications to the policy and a round of administrative process in which the original policy is decorated with new, nondiscriminatory rationales; and (4) the policy returns to the courts, where it is ultimately upheld in opinions that emphasize the dangers of second-guessing motives for official action. Of course, whereas the travel ban went through several rounds of such animus-laundering before it reached the Court, the census case hadn’t do so; the Court itself therefore ordered a round of revision, in which the most blatant lies will be washed away and replaced with subtler lies.

At bottom, then, the Chief’s objection concerns only the shamelessness of the administration’s bad faith. Before he dirties his hands upholding Ross’s decision, he has required Ross to clean things up a bit, thus ensuring that the citizenship question enjoys a patina of legitimacy when he finally okays it. This approach had the added, not-incidental virtue of allowing Roberts to muddy the waters on the very same day that he announced an opinion abdicating responsibility for policing partisan gerrymanders. The Chief was showered with praise for one decision and slammed for the other—thus obfuscating the appearance that he had issued two decisions that both further entrenched Republican efforts to rig our democratic process to their own advantage. If and when he ultimately allows the citizenship question to appear on the census, the Chief will do so outside the fever pitch of public and journalistic attention that accompanies the end of the Supreme Court term, maintaining the impression that he stood up to Trump when he really just asked for minimally-competent pretext.   

Postscript: In this post, I haven’t addressed the latest raft of equal protection challenges based on evidence of impermissible intent to disadvantage Hispanics (and to advantage non-Hispanic whites). Those proceedings may overlap with the sequence I’ve described, or they may unfold in parallel. In my view, the evidence of improper motive is damning. But given the predilections of the conservative majority, I doubt the Court will accept this evidence as a sufficient basis to block the citizenship question.  As Rick Hasen notes, that is particularly true if Ross now offers new reasons for the policy: "I expect that any new agency decision to include the citizenship question would be found by the court’s conservatives to have cleansed the decision of any racial animus."

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