June 27, 2019

Supreme Court Decides Department of Commerce v. New York

On June 27, 2019, the U.S. Supreme Court decided Department of Commerce v. New York, No. 18-966, holding that the Constitution’s Enumeration Clause allowed the government to ask census questions about citizenship, but the Administrative Procedure Act (APA) requires an agency to give more than “contrived reasons” for its decisions, and the Secretary of Commerce has not yet done that regarding his decision to ask about citizenship in the 2020 census.

In 2018, the Secretary of Commerce announced that the 2020 census would inquire about all respondents’ citizenship, as had been done historically but not in recent decades. The Secretary stated that the U.S. Department of Justice (DOJ) had requested this to help enforce the Voting Rights Act’s (VRA) ban on diluting the influence of minority voters, which turns on a minority group’s voting-age population. Although the Census Bureau had expressed concern that a citizenship question could discourage some noncitizens from responding — requiring individualized follow-up and potentially decreasing the accuracy of the enumeration — the Secretary found the evidence of depressed response rates to be inconclusive.

A variety of state governments, local governments and officials, and immigrant and minority organizations filed suit, claiming that the Secretary had violated the Constitution’s Enumeration Clause and Equal Protection Clause and the APA. In discovery, the Secretary disclosed that in reality, “the VRA played an insignificant role in the decisionmaking process.” In response, the district court authorized wide-ranging discovery into the Secretary’s subjective decision-making (including a deposition of the Secretary himself, although this was later stayed and did not occur).

That and other discovery revealed evidence that, in the Supreme Court’s words, “tells a story that does not match the explanation the Secretary gave for his decision.” In particular, “the VRA enforcement rationale — the sole stated reason — seems to have been contrived.” In reality, the record showed “that the Secretary 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.”

After trial, the district court agreed with the plaintiffs on their Census-Act and APA claims and enjoined the citizenship question, remanding the matter to the agency for further consideration. The Supreme Court granted review without an intervening decision from the Court of Appeals, upheld the authorization of discovery, and affirmed the judgment of remand.

The Court first rejected the plaintiffs’ Enumeration-Clause claim, noting the “long and consistent historical practice” under which “all three branches of Government have understood the Constitution to allow Congress, and by extension the Secretary, to use the census” to ask for a wide variety of information. The Court then held that census-related decisions are not committed entirely to the Secretary’s discretion and are judicially reviewable under the APA. Applying APA review, the Court held that “the evidence before the Secretary supported” the decision to ask the citizenship question, because the Secretary “justifiably found” the evidence on noncitizen response rates to be “inconclusive” and permissibly “determined that reinstating a citizenship question was worth the risk of a potentially lower response rate.”

But the Court affirmed the remand decision under the APA, finding that the Secretary had not given a “reasoned explanation” for his decision. The Court held that “contrived reasons” do not satisfy this requirement of the APA, and that the VRA explanation that “was provided here was more of a distraction” than a genuine explanation. The Court therefore affirmed the district court’s authorization of broad discovery, and its remand of the matter to the Commerce Department for further consideration.

The Chief Justice authored the opinion of the Court. Justice Thomas authored an opinion concurring in part and dissenting in part, joined by Justices Gorsuch and Kavanaugh. Justice Breyer authored an opinion concurring in part and dissenting in part, joined by Justices Ginsburg, Sotomayor, and Kagan. Justice Alito authored an opinion concurring in part and dissenting in part.

Download Opinion of the Court.

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