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Department of Commerce v. New York rejects agency explanation for citizenship question on 2020 census

Amber Jannusch
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Department of Commerce v. New York arose from the decision to add a question about citizenship status to the 2020 census. Plaintiffs – various states and the District of Columbia, as well as municipalities, mayors, and some non-governmental organizations – challenged the Department of Commerce decision based on the Enumeration Clause, the Equal Protection Clause, the Census Act, and the Administrative Procedure Act (APA).

The case was first heard in the Southern District of New York. Judge Furman dismissed the Enumeration Clause claim but held that the decision violated the Administrative Procedure Act. He vacated the decision and enjoined the Department of Commerce from adding a citizenship question unless it could cure the legal violations of the APA. Because of the urgency of the timeline and the need to print census materials, the Supreme Court agreed to bypass the Court of Appeals and address it directly.

Administrative Procedure Act and standing

The crux of the case comes under the Administrative Procedure Act, but the Court also discussed and held that plaintiffs have standing to bring suit.

The Court agreed that the plaintiffs proved that the citizenship question would chill response rates, which in turn affects federal funding for states based on population. An undercount as little as 2% – well below the prediction of 5.8% from the District Court or 5.1% from the Bureau – would result in fewer House seats or other funding in states with higher percentages of non-citizens.

The government argued that this injury is not a result of the Secretary’s decision, but rather depends on independent actions of a third party. However, evidence at trial established that the action of non-citizens was a “predictable effect of Government action on the decisions of third parties” based on historical precedent and evidence that many non-citizens feared that the government would illegally use census information for immigration enforcement proceedings.

Questions about citizenship do not violate the Enumeration Clause

The Enumeration Clause of the Constitution vests Congress – and by delegated authority the Secretary of Commerce – with virtually unlimited discretion in how the census is conducted. Historically, “all three branches of Government have understood the Constitution to allow Congress, and by extension the Secretary, to use the census for more than simply counting the population.”

The addition of demographic questions has consistently been used and accepted, and the Enumeration Clause does not prohibit the addition of a question about citizenship status.

Compliance with the Census Act and review under the APA

The Census Act requires the Secretary of Commerce to conduct the decennial census with significant authority to choose and implement methods and questions. However, this authority does have some limitations embedded within the act and is not entirely under the discretion of an agency; thus, the Census Act is not within the narrow category of administrative decisions that are not reviewable by the judiciary.

Narrow review of agency decisions under the APA

While the APA provides a mechanism for review of agency action, the standard is “arbitrary and capricious,” a low bar for agencies. Under this standard, a court is not allowed to substitute its judgment for that of the agency, nor should it consider whether there were better decisions that could have been made. The question is simply whether the agency fulfilled its responsibility.

Specifically, the Supreme Court majority looked only to “whether the Secretary examined the relevant data and articulated a satisfactory explanation for his decision, including a rational connection between the facts found and the choice made.”

The District Court held that there were two separate and independent reasons to vacate the Secretary’s decision, because:

1.       The action was not supported by evidence

2.       The stated rationale was pretextual

The Supreme Court examined these separately, disagreeing on the first but also finding the agency’s explanation to be insufficient.

Agency decisions must be based on data and “satisfactory explanation”

One requirement on agencies is that they collect and review data and provide a “satisfactory explanation for [their] decision.” In this case, the Secretary examined four models for collecting citizenship information and concluded that the benefits of using the census as the mechanism for data collection outweighed the risk of a lower response rate.

The government explained that more complete and accurate citizenship information would allow the Department of Justice to better enforce the Voting Rights Act and pointed to a memo from the Department of Justice to that effect. The Court found this to be a sufficient reason to explain the decision to add the citizenship question to the census.  

Requiring only a “rational connection between the facts found and the choice made,” the court gave significant deference to the agency’s explanation for the decision and a nod to principles of separation of power. Plaintiffs argued that the department action was based on unstated reasons arising from politics and administrative ideology.

However, because of the low standard of review, courts are directed to accept an agency’s stated reasons in light of the administrative record, and the presence of additional unstated reasons is not sufficient to reject the agency’s explanation. Likewise, the influence of politics and ideology does not necessarily make an agency’s decision an abuse of discretion.

Courts that examine the administrative record and agency’s explanation, generally, should not inquire into the motivation behind a decision because this would be an improper intrusion on actions of the executive branch.  

That said, the Court clarified that deeper inquiry into the agency’s explanation may be justified on a “strong showing of bad faith or improper behavior” and may order additional extra-record discovery.

The Secretary’s explanation was not genuine

Reviewing the evidence from within the administrative record and from additional discovery material as a whole, the Court found that “the decision to reinstate a citizenship question cannot be adequately explained in terms of DOJ’s request for improved citizenship data to better enforce the VRA.” The Court noted that the Secretary indicated his desire to reinstate the citizenship question only a week into his tenure, but at that point there was no mention of the Voting Rights Act.

The Department of Commerce initially looked for a request from the Department of Homeland Security and the Justice Department’s Executive Office for Immigration Review and investigated whether it needed a request at all, before turning to the Civil Rights Division at DOJ with the VRA enforcement justification.

While the Supreme Court found nothing particularly unacceptable about any individual step taken in the decision-making process, when looking at the broader picture of all steps in concert, they held:

[V]iewing the evidence as a whole, this Court shares the District Court’s conviction that the decision to reinstate a citizenship question cannot be adequately explained in terms of DOJ’s request for improved citizenship data to better enforce the VRA. Several points, taken together, reveal a significant mismatch between the Secretary’s decision and the rationale he provided.

Chief Justice Roberts opined that while agency decisions may have both “stated and unstated” reasons behind them, the decision made regarding VRA enforcement could only be found to be manufactured. Therefore, remand of the case back to the agency was appropriate to determine a reasoned, genuine explanation for the action.


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