Supreme Court Hands Trump Administration A Loss In Census Citizenship Case

In a clear defeat for the Trump Administration, the Supreme Court upheld a lower court ruling that the Federal Government could not ask about citizenship on the 2020 Census.

In a somewhat divided and convoluted ruling, the Supreme Court ruled that the Department of Commerce did not provide a sufficient basis for including a citizenship question on the 2020 Census, an outcome which all but guarantees that there will not be such a question on the ballot:

WASHINGTON — In a setback for the Trump administration, the Supreme Court on Thursday rejected its stated reason for adding a question on citizenship to the census, leaving in doubt whether the question would appear on the census forms sent to every household in the nation next year.

Chief Justice John G. Roberts Jr., writing for the majority, said the explanation offered by the Trump administration for adding the question “appears to have been contrived.” But he left open the possibility that it could provide an adequate answer.

Executive branch officials must “offer genuine justifications for important decisions, reasons that can be scrutinized by courts and the interested public,” the chief justice wrote. “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.”

The practical impact of the decision was not immediately clear. While the question is barred for now, it is at least possible that the administration will be able to offer adequate justifications for it. But time is short, as the census forms must be printed soon.

The decision was fractured, but the key passage in the chief justice’s majority opinion was joined only by the court’s four-member liberal wing.

Chief Justice Roberts wrote that executive branch officials ordinarily have broad discretion to make policy judgments. But he said the record in the case demonstrated that Wilbur Ross, the commerce secretary, had not given a full and accurate account of his decision to add the question.

In sworn testimony before Congress, Mr. Ross said he had decided to add the question “solely” in response to a Justice Department request in December 2017 for data to help it enforce the Voting Rights Act, or the V.R.A. Three federal trial judges have ruled that the evidence in the record demonstrated that Mr. Ross was not being truthful.

Chief Justice Roberts wrote that the evidence in the case showed that “the V.R.A. played an insignificant role in the decision-making process.” Instead, the chief justice wrote, Mr. Ross had tried hard to find a rationale for adding the question.

“The secretary,” Chief Justice Roberts wrote, “was determined to reinstate a citizenship question from the time he entered office; instructed his staff to make it happen; waited while commerce officials explored whether another agency would request census-based citizenship data; subsequently contacted the attorney general himself to ask if D.O.J. would make the request; and adopted the Voting Rights Act rationale late in the process.”

“Altogether,” the chief justice wrote, “the evidence tells a story that does not match the explanation the secretary gave for his decision.”

The trial judge in the case had given the administration another chance to provide an explantation, and the Supreme Court affirmed that ruling.

“In these unusual circumstances,” Chief Justice Roberts wrote, “the district court was warranted in remanding to the agency, and we affirm that disposition.”

“We do not hold that the agency decision here was substantively invalid,” the chief justice 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.”

Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan joined the key part of the chief justice’s opinion.

In dissent, Justice Clarence Thomas said the majority had done something extraordinary. “For the first time ever,” he wrote, “the court invalidates an agency action solely because it questions the sincerity of the agency’s otherwise adequate rationale.”

Justices Neil M. Gorsuch and Brett M. Kavanaugh joined Justice Thomas’s partial dissent.

Justice Thomas said the courts should give executive branch officials the benefit of the doubt. “I do not deny,” he wrote, “that a judge predisposed to distrust the secretary or the administration could arrange those facts on a corkboard and — with a jar of pins and a spool of string — create an eye-catching conspiracy web.”

He said the consequences of the majority decision would be far-reaching.

“Now that the court has opened up this avenue of attack,” he wrote, “opponents of executive actions have strong incentives to craft narratives that would derail them.”

Justice Samuel A. Alito Jr. filed his own partial dissent.

“To put the point bluntly,” he wrote, “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.”

Government experts predicted that asking the question would cause many immigrants to refuse to participate in the census, leading to an undercount of about 6.5 million people. That could reduce Democratic representation when congressional districts are allocated in 2021 and affect how hundreds of billions of dollars in federal spending are distributed.

Amy Howe summarizes what is somewhat of a difficult decision to easily summarize:

In an opinion by Chief Justice John Roberts, the court today explained that the district court had overturned Ross’ decision to add the citizenship question for two reasons. The first is that it wasn’t supported by the evidence before Ross, because the Census Bureau had recommended that the citizenship data be gathered from administrative records instead. But neither approach was perfect, Roberts concluded, so it was reasonable for Ross to decide to use the citizenship question instead of the administrative records. And it was also reasonable for him to decide that it would be worth it to include the citizenship question even though it might result in a lower response rate from households with residents who are not U.S. citizens.

But the district court had also ruled that Ross’ rationale for including the citizenship question – that the Department of Justice had asked for the data to better enforce federal voting-rights laws – was a pretext for its actual reasoning, and here the court agreed. “The evidence showed,” Roberts wrote, that Ross “was determined to reinstate a citizenship question from the time he entered office; instructed his staff to make it happen; waited while Commerce officials explored whether another agency would request census-based citizenship data; subsequently contacted the Attorney General himself to ask if DOJ would make the request; and adopted the Voting Rights Act rationale late in the process.”

Roberts acknowledged that courts should be “deferential” when reviewing an agency’s action, but he countered – citing Judge Henry Friendly, for whom he clerked on the U.S. Court of Appeals for the 2nd Circuit – that “we are not required to exhibit a naiveté from which ordinary citizens are free.” And here, when “the evidence tells a story that does not match the explanation the Secretary gave for his decision,” judicial review calls for “something better than the explanation offered for the action taken in this case.” “In these unusual circumstances,” Roberts concluded, the district court was therefore correct to send the case back to the Department of Commerce for it to provide a better explanation.

Justice Clarence Thomas filed an opinion concurring in part and dissenting in part. In his view, the Supreme Court’s “only role in this case is to decide whether the Secretary complied with the law and gave a reasoned explanation for his decision.” Because the “Court correctly answers these questions in the affirmative,” Thomas argued, that “ought to end our inquiry.”

The court’s four liberal justices joined Roberts in agreeing to send the case back to the Department of Commerce, but Justice Stephen Breyer also filed an opinion that was joined by Justice Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan. They maintained that, even if Ross’ decision to add the citizenship question wasn’t pretextual, it still violated the federal laws governing administrative agencies because he decided to ask the question even though all of the evidence “indicated that asking the question would produce citizenship data that is less accurate, not more.”

The decision in the case is rather complicated due to the fact that there are a number of opinions that consist of Justices concurring in parts of the majority opinion while dissenting to others. What the decision basically means is that the injunction that was issued by the District Court blocking the Commerce Department from putting the citizenship question on the Census questionnaire in 2020, especially given the fact that the deadline for beginning to print the census forms so that they are ready to be sent at the beginning of 2020 is quickly approaching. Depending on who you listen to, that deadline is either as early as the end of this month or perhaps as later as October 31st. Whichever one it is, though, it seems clear that the outstanding legal issues regarding the questions are not going to be resolved before the deadline is reached and the forms must be printed.

One thing that should be made clear about this decision is what it does not say. Specifically, the Court did not say that the government can never ask about citizenship on the Census. In fact, Chief Justice Roberts made clear in his majority opinion, which was joined by the Court’s liberals that there is no Constitutional or statutory bar to asking that question on the form. What the court basically said here is that the reasons that the Commerce Department gave for including the question on the 2020 Census for the first time since the 1950 Census were not sufficient and, essentially, that they were not believable. In that respect, as several legal experts have already noted, this is principally a decision pursuant to the Administrative Procedure Act and that the Court has ruled that the relevant agency has not provided a sufficient basis for putting the question back on the form given that it has not been used in seventy ye

Theoretically at least, this means that the Administration could try to save the case by clarifying the basis for including the question, but it seems unlikely that they’ll be able to do so in time for the question to be included on next year’s Census.

The first reason this is the case is the fact that the deadline by which the government must begin printing the Census questionnaire is fast approaching and the legal process in the courts below are likely not to move quickly enough to allow the Commerce Department to put forward a plausible case for including the question, assuming that one can even be made given the available evidence and what Commerce Secretary Wilbur Ross has already said publicly about the reasoning behind the decision, which neither the District Judge nor a majority of the Supreme Court seem to have found believable.

The second issue lies in other legal proceedings, as Howe explains:

In late May, the challengers notified the justices about new evidence indicating that Thomas Hofeller, a Republican redistricting strategist, had played a key role in the decision to add the citizenship question to the census, and that the question had been added to provide whites and Republicans with an advantage in future elections. The evidence came from several hard drives that Hofeller’s estranged daughter had found while going through his things after his death last year. Stephanie Hofeller had shared the hard drives with the North Carolina chapter of the watchdog group Common Cause, which is involved in a partisan-gerrymandering case in that state, after she called the group seeking a recommendation for a lawyer for her mother.

The challengers returned to the Supreme Court last week. Emphasizing that the district court had agreed that the new allegations were “serious” but concluded that its hands were tied because the case is now before the justices, the challengers told the Supreme Court that it should either uphold the district court’s ruling or send the case back to the lower court for more fact-finding in light of the new revelations. The challengers argued that if the Trump administration actually wanted to add the citizenship question to give an advantage to whites and Republicans, that would be “the diametric opposite” of what the administration has maintained throughout this lawsuit

 On Tuesday, the U.S. Court of Appeals for the 4th Circuit sent another challenge to the use of the citizenship question back to a federal district court in Maryland so that the lower court could consider, in light of the new evidence, whether Ross had added the question because he intended to discriminate against Hispanics. In a concurring opinion, Judge James Wynn suggested that U.S. District Judge George Hazel might want to consider whether to temporarily block the government from including the citizenship question on the census questionnaire. The 4th Circuit’s order led to another flurry of last-minute filings in the Supreme Court. In a letter to the justices on Tuesday afternoon, the federal government again implored the justices to go ahead and resolve the dispute over the citizenship question now, including the question whether Ross had intended to discriminate against Hispanics. The government had addressed this issue in its brief in the Supreme Court, Solicitor General Noel Francisco stressed. And in any event, because the census questionnaire needs to be finalized by the end of June, the 4th Circuit’s order makes it likely that the justices will inevitably have to tackle this question one way or another, so it would be better to do so now in this case, instead of having to do it on an emergency basis in the Maryland case.

The District Court Judges handling either of the pending iteration of these secondary challenges to the Census question could ultimately end up issuing their own injunctions against the use of the citizenship question. In that case, it would be difficult for any appeal of the decision to be heard in time. This is why today’s decision effectively means that the citizenship question will not appear on the 2020 Census form.

Not surprisingly, this outcome is not making the President, who arrived in Osaka, Japan for the G-20 Summit at roughly the same time the Court was handing this decision down, very happy:

President Trump vowed Thursday to try delaying the 2020 census after the Supreme Court blocked, for now, his administration’s plan to include a question that inquires about citizenship status.

The court had said that the administration’s explanation for adding the question was insufficient and sent it back to the lower courts for further consideration. The ruling marked a major setback for the administration. While more lower-court litigation is possible, it would be difficult for the government to get the question on the census in time for the forms to be printed by their original self-declared summer deadline.

But Trump raised the possibility of a delay until a final resolution by the courts. In a fiery Twitter response to the narrow ruling, Trump said it “seems totally ridiculous” for the government not to ask such a “basic question.”

“I have asked the lawyers if they can delay the Census, no matter how long, until the … United States Supreme Court is given additional information from which it can make a final and decisive decision on this very critical matter,” he said.

It remains unclear whether a delay is possible for the population count that is supposed to be conducted every 10 years. The Justice Department said in a statement it was “disappointed” by the decision.

“The Department of Justice will continue to defend this administration’s lawful exercise of executive power,” DOJ spokesperson Kelly Laco said.

Here’s the President’s Tweet:

The Constitution, of course, mandates that the Census be conducted every ten years, so there really isn’t any legal authority for the idea of “delaying” the Census. But this is Trump we’re talking about and this is how he reacts to a bad day at the Supreme Court. Not exactly Presidential, but then that’s been true of his Administration from day one.

Here’s the opinion:

Dept of Commerce v. New Yor… by on Scribd

FILED UNDER: Law and the Courts, Supreme Court, , ,
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. James Joyner says:

    I think the Court reached the right result for the right reasons. But they’d have almost surely gone the other way had Ross not been such a blatant and lousy liar.

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  2. Jay L Gischer says:

    My respect for Alito’s thought process and temperament lessens each time I read something of his:

    “To put the point bluntly,” he wrote, “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.”

    The judiciary has every authority to interpret laws such as the Administrative Procedures Act. Which is an Act of Congress and has the force and standing of law.

    13
  3. mattbernius says:

    @James Joyner:

    But they’d have almost surely gone the other way had Ross not been such a blatant and lousy liar.

    What’s particular disturbing to me is that 4 members of the court were still willing to go the other way despite clear evidence that Ross is a blatant and lousy liar (and let’s be clear, Thomas doesn’t even see an issue with the lying).

    Given the new evidence that emerged remanding this back should not have required a crossover.

  4. Stormy Dragon says:

    Of course, the gerrymandering decision makes this one moot. It doesn’t matter what the count is if the representatives are deliberately manipulated to prevent the voters from being equally represented anyways.

  5. mattbernius says:

    @mattbernius:

    What’s particular disturbing to me is that 4 members of the court were still willing to go the other way despite clear evidence that Ross is a blatant and lousy liar.

    FWIW, I at least respect (though disagree) with Alito’s position that regardless if they lie or not, the secretary has the power to make this decision. That’s at least consistent.

    Thomas’s hand-waving away of the evidence the Ross and company give false testimony as “conspiracy thinking” is frankly insulting. But not surprising to say the least.

  6. Moosebreath says:

    “The Constitution, of course, mandates that the Census be conducted every ten years, so there really isn’t any legal authority for the idea of “delaying” the Census.”

    Would having the census take place in December 2020 instead of June 2020 count as fulfilling the every 10 years requirement? I suspect Trump could get 5 Justices to say so, and this gives the administration 6 months to come up with a more plausible rationale.

  7. Teve says:

    Deleted cuz redundant.

  8. Blue Galangal says:

    @Moosebreath: True, except they’ve been arguing for a rush rush rush decision on this because the June 30 deadline was “immovable.” It would take a lot of chutzpah to suddenly decide it’s flexible after all. Of course, that’s all they have, so…

  9. EddieInCA says:

    Question for Mr. Mataconis, Dr. Joyner, Dr. Taylor and the rest of the commentariat:

    If a Dem wins in 2020 and the Senate stays in GOP hands, and a justice passes or retires, it there a possibility (or probability) that the GOP refuses to let the Dem President SC nominee get a vote? I can see a scenario where McConnell just refuses (like Garland) because he can…. and as Mr. Mataconiz has told us over and over again, there is nothing wrong with not putting a nominee up for a vote ever.

  10. Kathy says:

    Ten to one El Cheeto will try to delay the census until the citizenship question gets in. Five to one he will threaten not to allow the census at all and backs down alter. Five to one he will claim any census conducted at any time in any of his terms is 110% legitimate. An one to one hundred if he loses in 2020, he will rant the following year on Twitter (not a typo) about the lack of a census now that a Democrat is president.

  11. Teve says:
  12. Daryl and his brother Darryl says:

    My money is on the Citizenship Question ending up in the Census in the long run.

  13. Teve says:

    @Daryl and his brother Darryl: yeah but if we can just get past the 2020 census it’ll buy us a decade. And Latinos as a group are not shrinking. And there’s gonna be a lotta LifeAlert bracelets alarming in those 10 years.

  14. SenyorDave says:

    @EddieInCA: If a Democrat wins and McConnell is still Majority Leader maybe rumblings of a DOJ investigation into what the Secretary of Transportation was doing about Kentucky transportation projects while her husband was a Senator from Kentucky might make McConnell more agreeable.
    This country is broken as long as Republicans occupy positions of power in national politics. They will gladly support a treasonous rapist as president as long as they get their tax cuts so they can continue to receive their corporate cash.
    I think that Duncan Hunter is the tip of the iceberg, but as long as Barr is AG the GOP is safe. I’m beginning to wonder whether they are the most corrupt national party in US history.

  15. Jay L Gischer says:

    @SenyorDave: There’s a historical pattern I’ve noticed. If one political party has an easy ride somewhere, the chances are good it will become corrupt.

    That is to say, once it becomes easy to articulate the ideas that win over the electorate, it’s easy to spout those ideas more stridently and energetically than everyone else, win office, and use that office to line your pockets.

    This is what happened to Lincoln’s Republican Party when it became Grant’s Republican Party. The Democratic Party had sort of self-immolated over the issue of slavery, so it was super easy to get into office as a “Republican”. Actually caring about governing was not a requirement.

    I can see this pattern elsewhere, and it’s happened a fair bit to Dems, too. But Democratic party platforms usually aren’t the sort of thing that Big Money likes and will throw cash it. Which lessens the corruption. But it can still happen at a more local level.

  16. @EddieInCA:

    If a Dem wins in 2020 and the Senate stays in GOP hands, and a justice passes or retires, it there a possibility (or probability) that the GOP refuses to let the Dem President SC nominee get a vote?

    I think that, yes, there is a chance that will happen (a not insubstantial one).

  17. Stormy Dragon says:

    What happens if the Census Bureau tomorrow just comes out and openly says they want to include the Citizenship Question so that state legislatures can improve the partisan advantage of their redistricting? Based on today’s Gerrymandering precedent, does Roberts decide they SCOTUS can’t be involved in deciding whether to allow the question or not?

  18. An Interested Party says:

    @Teve: That treacherous toady can’t be taken at his word…

  19. Just Another Ex-Republican says:

    @Stormy Dragon: Exactly. The lack of logic or consistency in these two decisions is mind boggling.

  20. James Joyner says:

    @EddieInCA:

    If a Dem wins in 2020 and the Senate stays in GOP hands, and a justice passes or retires, it there a possibility (or probability) that the GOP refuses to let the Dem President SC nominee get a vote? I can see a scenario where McConnell just refuses (like Garland) because he can…. and as Mr. Mataconiz has told us over and over again, there is nothing wrong with not putting a nominee up for a vote ever.

    There’s every possibility. Doug is right: the Senate has no legal obligation to confirm judges. I disagree with him on in that I think they have a moral-civic obligation to give them an honest hearing.

  21. @James Joyner:

    Well yes, they ought to give every nominee consideration but that’s different from saying they have a Constitutional mandate to hold a vote, which is what many Democrats argued during the whole Garland gambit.

  22. Tyrell says:

    @Jay L Gischer: I remember a relative telling of when he moved to Louisiana back in the ’50s. He went to register to vote at the local county (parish) election registration office. He told them he was a Republican. They told him that that he couldn’t. there was no Republican party there; not since Reconstruction ended.
    Around here Democrats still dominate the local offices: city councils, mayors, county commissions, safety commissioner, solicitor, dog catcher, police chief,

  23. Blue Galangal says:

    @Teve:

    if we can just get past the 2020 census it’ll buy us a decade. And Latinos as a group are not shrinking. And there’s gonna be a lotta LifeAlert bracelets alarming in those 10 years.

    It is mindboggling how many Baby Boomers are driving this racism train. I’ve mentioned the Ravelry situation, which I’m continuing to observe with interest (the site owner is sticking to his guns and there’s a small incredibly whiny entitled minority using his own platform to screech what poor oppressed victims they are (I am not kidding: they have compared themselves to victims of apartheid and the Holocaust because a privately owned platform has decided not to tolerate hate speech any more), but what’s striking about the dissenters on Ravelry is they are all old white women, often from red states. They’re the ones who benefited from a solid economy and the postwar boom and 90% tax rates and now… now they don’t want brown people in their country. Or their White House, needless to say. Jesus H.

    ETA: which is a long way of saying, I had exactly the same thought. They’re all in their 60s or 70s.

  24. James Joyner says:

    @Doug Mataconis:

    Well yes, they ought to give every nominee consideration but that’s different from saying they have a Constitutional mandate to hold a vote, which is what many Democrats argued during the whole Garland gambit.

    Agreed. Indeed, up to a point, I’d agree with McConnell. If, say, Obama had appointed Garland in the lame duck period between the election and Trump’s inauguration, I’d say it was perfectly reasonable to hold the seat open for the new President of the opposite party. And I’m amenable to the argument even a few weeks out from the election. But not with ten months remaining in the four-year term.

  25. @James Joyner: Indeed.

    And while I agree with Doug that, as a matter of the black letters on the page, there is no duty for the Senate to have a vote, I think that the spirit of the process quite clearly suggests they have a responsibility to at least give the nominee a hearing and a vote in committee.

    There are a lot of things that the Congress is not constitutionally required to do (I don’t suppose they are required to pass laws or to act on any presidential nomination whatsoever). However, they clearly have assumed responsibilities in those (and a host of other) areas.

  26. Just nutha ignint cracker says:

    @Steven L. Taylor: True enough. But the only “responsibility” that they seem to take seriously is the one to be reelected until they tire of the “responsibility” or die in office.

  27. Teve says:

    @Blue Galangal: There are of course lots of people in every age cohort who are good people. But it’s also true at the moment that the older the cohort the more racism it contains. And since people in their 70’s vote at literally twice the rate as people in their 20’s, racist white people are vastly overrepresented in our politics.

    If we can make it through this census it’ll be 2030 before they can try this bullshit again. And if the GOP is still trying obviously racist bullshit in 2030….

  28. An Interested Party says:

    Well yes, they ought to give every nominee consideration but that’s different from saying they have a Constitutional mandate to hold a vote, which is what many Democrats argued during the whole Garland gambit.

    Not sure if Doug actually thinks this, but anyone who doesn’t think that what McConnell did was a big deal has no right to criticize the idea of packing the Supreme Court nor characterizing that as a “radical” idea…

  29. @An Interested Party: I will say this: packing the court is clearly not unconstitutional. The constitution does not set the number of Justices and it constraints neither the president nor the senate in terms of appointing and confirming.