//  4/1/19  //  In-Depth Analysis

Earlier this year, in an extraordinarily thorough and well-reasoned opinion, Judge Jesse Furman of the U.S. District Court for the Southern District of New York overturned a decision by the Commerce Secrety to add a citizenship question to the 2020 census. The government immediately appealed Judge Furman's decision to the Supreme Court, where it asserts that the judiciary has no authority to pass upon the Secretary’s decision. Today, along with my colleagues Roberta Kaplan, Julie Fink, and Matthew Craig of Kaplan Hecker & Fink, I filed an amicus brief at the Court explaining why the government's arguments against judicial review are meritless. This brief was filed on behalf of leading administrative and constitutional law scholars: Nicholas Bagley, Michael Dorf, Aziz Huq, Leah Litman, Gillian Metzger, Jon Michaels, Larry Tribe, and Stephen Vladeck.  

You can read the brief at this link. 

Here is how the brief opens:

The question here is not whether the Commerce Secretary has the statutory power to add a question about citizenship to the census. It is, instead, whether the Secretary adhered to the most elementary requirements of reasoned decisionmaking when he decided to do so. By virtue of the position taken by the government on appeal, this Court must also decide whether it is wholly precluded from policing arbitrary, capricious, and pretextual decisions by a political appointee regarding the census questionnaire.

In some respects, this is an exceptional case. The procedure by which the Secretary decided to add a citizenship question to the 2020 census violated many rules of administrative law. Rarely is an agency action so thoroughly riddled with indicia of arbitrary and capricious decisionmaking. While the government insists that this was nothing more than a policy judgment, it was a judgment purportedly based on specific reasons. Yet those reasons collapse on even cursory inspection—as do the government’s claims that these reasons had anything to do with the Secretary’s foreordained conclusion. 

In other respects, though, this is an ordinary case. The Secretary took an action that, by his own agency’s account, will reduce response rates among specific groups and thereby cause injury to Respondents. The Secretary’s decision, moreover, reversed decades of practice, violated his agency’s own methodological standards, defied a widelyshared expert consensus, and departed from his statutory authority. Unsurprisingly, Respondents filed suit in federal court, contending that this agency action violated the Administrative Procedure Act (APA). Subsequently, when the district court found the government had presented a fictionalized and incomplete record, that court authorized limited discovery to ensure it was reviewing the actual record of the agency’s decision. And finally, the court applied familiar administrative law principles to set the Secretary’s decision aside.

On appeal, the government asserts that the only errors here occurred in the district court. As we will show, this contention is without foundation.

I. Respondents have Article III standing. The government’s contrary argument rests on three basic errors. First, although the government suggests that any harm resulting from the addition of a citizenship question is speculative, its own experts found (and then testified) that reduced response rates among noncitizens and Latino households are inevitable. Second, the government errs in asserting that the presence of third parties defeats traceability. Many cases have upheld standing where plaintiffs offered empirical proof or economic reasoning to show that alleged wrongdoing would predictably influence third parties in ways that cause injury. See, e.g., Davis v. FEC, 554 U.S. 724, 729 (2008); Clinton v. City of New York, 524 U.S. 417, 433 (1998); Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992); TrafficSchool.com, Inc. v. Edriver Inc., 653 F.3d 820, 825 (9th Cir. 2011). Finally, no legal principle prohibits Respondents from establishing a causal chain merely because one link involves unlawful acts, particularly when there is no dispute that such acts will occur and cause injury. Cf. South Dakota v. Wayfair, Inc.,138 S. Ct. 2080 (2018).

II. Section 701(a)(2) of the APA does not bar judicial review. This narrow exception to the norm of review applies only when there is no law to apply, there is a well-recognized tradition of unreviewability, and the issue is decidedly unsuitable for review. See Weyerhaeuser Co. v. U.S. Fish & Wildlife Serv., 139 S. Ct. 361, 370 (2018); Lincoln v. Vigil, 508 U.S. 182, 191 (1993); Heckler v. Chaney, 470 U.S. 821, 828 (1985). Here, the Census Act, the Census Clause, and the Census Bureau’s own binding standards provide law to apply. Further, there is a long tradition of judicial review in this field, and the Secretary’s decision is most certainly amenable to reasoned review under the APA (as evidenced by the decision below). That conclusion is bolstered by the significance of the census to our system of political representation and to the distribution of federal funds among the states. Finally, precluding judicial review would be especially improper in light of the fact that failure to fully and truthfully answer any questions contained on the census questionnaire is a crime. See 13 U.S.C. § 221. 

III. The district court did not abuse its broad discretion in allowing limited extra-record discovery. This is one of the extraordinarily rare cases in which there was a strong evidentiary basis for suspecting that the agency had presented a fictionalized account of its decisionmaking process. See Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 420 (1971). As a result, considering only the agency’s self-selected record would have defeated the point of APA review. In arguing otherwise, the government offers a novel and incorrect legal test, conflates the standard for discovery with the standard for substantiating an APA claim, and improperly treats as irrelevant the record of procedural irregularity before the district court.

The bottom line is simple. The Secretary made a decision with momentous implications for the health and structure of our democracy. He did so through procedures that fail the minimal requirement of rationality, and then presented a fictionalized and incomplete account of his reasons to the reviewing court. The government now argues that this Court lacks any power to even consider a challenge to that decision. But the government is wrong. Under settled precedent, this Court must hear Respondents’ claims on the merits—and, for the reasons given by Respondents, should affirm the judgment below.

Later in the brief, we emphasize more generally why it would be anomalous and imprudent to conclude that judicial review is prohibited:

Designing, administering, and calculating results from the census is a vital national undertaking. “The population count derived from that effort is used not only to apportion Representatives among the states, but also to draw political districts and allocate power within them. And it is used to allocate hundreds of billions of dollars in federal, state, and local funds . . . Even small deviations from an accurate count can have major implications for states, localities, and the people who live in them.” P[

Given the significance of the census, the Framers labored over it, choosing language “with precision” and requiring an “actual Enumeration.” Utah v. Evans, 536 U.S. 452, 489 (2002) (Thomas, J., concurring in part and dissenting in part). “Future congressmen”—and, it seems safe to say, future presidential administrations—would thus be prevented from “devising some other sly formula to entrench themselves against demographic shifts.” Akhil Reed Amar, America’s Constitution: A Biography 84 (2005).[1]

In light of the towering importance of the census in the constitutional plan, the apportionment of political representation at every level, and the distribution of benefits across states, it would be anomalous to conclude that a single political appointee wields unreviewable discretion to arbitrarily alter its content. That is particularly true where the relevant appointee violated the very statutory notice provisions designed to allow Congress an opportunity to raise and address concerns about the census. See Pet. App. 272a–84a; see id. at 128a (observing that Secretary Ross also gave “‘admittedly imprecise,’ if not false, testimony before Congress”). The legitimacy of our political system depends in no small part on an accurate population count. Allowing anyone judicially unfettered discretion to modify the census on grounds lacking any basis in fact or law—and in ways that will materially impair its accuracy—would be profoundly imprudent. 

Consistent with that reality, Section 701(a)(2) does not preclude judicial review. Decisions about the form and content of the census are radically dissimilar from the discretionary decisions about internal agency operations addressed in Heckler, Webster, ICC, and Lincoln. That conclusion is confirmed by a review of the relevant statutory and constitutional provisions, traditions of judicial review, and the feasibility of APA review. It is also bolstered by cases that weigh against allowing executive officials unbounded discretion to define the substance of a federal crime.

[1] Because the Electoral College is affected by the census results, the Framers’ fear of self-dealing also applies to the President. This is yet another reason why it could be troubling to conclude that Congress alone may check improper decisionmaking by the Commerce Secretary: the President’s veto power might allow even irrational decisions to stand if they work to his benefit. 

Again, you can read the full brief here.


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