Case No. 18-966 | S.D.N.Y.
Preview by Michael Fischer, Online Editor
Every ten years, the U.S. Census Bureau conducts a citizenship survey for the purposes of determining the number of U.S. House of Representatives seats and proportion of federal funding to be allotted to each state based on population. In March 2018, Commerce Secretary Wilbur Ross announced that the 2020 census would include a question regarding each respondent’s citizenship status. Secretary Ross asserted that the question was intended to provide the Civil Rights Division of the U.S. Department of Justice (“DOJ”) with data necessary to better enforce voting rights laws. In response, a group of states, localities, and civil rights organizations challenged the citizenship question, arguing that Secretary Ross’s proffered reasoning for it was a pretextual justification for undercounting undocumented and Hispanic residents who fear deportation and are less likely to respond. During the initial stages of litigation, the groups challenging the question sought depositions of several high-ranking officials including the acting head of the DOJ Civil Rights Division and Secretary Ross himself. The challengers were ultimately prohibited from deposing Ross until other fact-finding was first allowed to move forward, and the Supreme Court announced that while it would consider the interlocutory appeal on this issue, they would not stop the underlying trial from proceeding.
Before the Court could hear argument of the evidentiary issues, the district court issued a decision in January enjoining the Secretary from reinstating the citizenship question. Based on the need to finalize the citizenship questionnaire by June, the government argued that it was necessary to bypass the Court of Appeals and have the matter resolved directly by the Supreme Court. The Court subsequently granted certiorari on February 15th. The questions before the Court are (1) whether the district court erred in enjoining the Secretary of Commerce from reinstating a question about citizenship to the 2020 census on the ground that the Secretary’s decision violated the Administrative Procedure Act, (2) whether extra-record discovery to examine the mental processes of the decisionmaker was proper, and (3) whether the addition of a citizenship question to the census violated the Enumeration Clause.
Petitioner argues that the district court erred in barring reinstatement of the citizenship question since Respondents lack Article III standing based on their inability to assert an injury fairly traceable to the inclusion of the citizenship question in the 2020 census. Brief for Petitioner at 12, Dep’t of Commerce v. New York, No. 18-966 (U.S. filed Mar. 6, 2019). The injuries alleged by Respondents, Petitioners argue, would only result from unlawfully providing false answers to the questions based solely on their fears that the government will in turn act unlawfully by using their answers for law enforcement purposes. Id. Furthermore, Petitioners allege that the Secretary’s decision to reinstate the question is committed to agency discretion and therefore unreviewable by the courts. Id. at 13. In addition, they also argue that the Secretary’s decision was not arbitrary and capricious because, among other reasons, the question had appeared on nearly every census dating back to 1820. Id. at 28, 39. Petitioners also contend that Secretary Ross’s rationale was not pretextual because the Department’s contemporaneous explanation was rational and that his decision was in accordance with the law because the question was included in his statutorily mandated report to Congress. Id. at 15–16.
Respondent counters that the harm resulting from the question’s reinstatement would not be speculative but would in fact result underreporting of approximately 6.5 million people and thereby lead to a loss of federal funding and congressional representation in many states. See Brief for Gov’t Respondents at 17, 22, Dep’t of Commerce, No. 18-966 (U.S. filed Apr. 1, 2019). Additionally, Respondent argues that Secretary Ross’s decision is in fact reviewable under the Census Act, 13 U.S.C. § 6(c), since it requires the Secretary to rely on administrative records rather than census questions in collecting demographic information. Brief for Gov’t Respondents at 17–18, No. 18-966 (U.S. filed Apr. 1, 2019). As a reviewable decision, they argue, the Court should find that it was arbitrary and capricious under the Administrative Procedure Act because the Secretary ignored empirical evidence suggesting that the citizenship question would render enumeration less accurate and he failed to justify how the purported benefit to DOJ would outweigh this harm. Id. at 18–19.