DEPARTMENT
OF COMMERCE v. NEW YORK[1]
On June 27, 2019, the Supreme Court ruled that the Trump
administration's decision to add a citizenship question to the U.S. census did
not violate the Enumeration Clause or the Census Act, but the Commerce
Secretary’s rationale for the decision was an unlawful pretext for the actual
reason.
In
March 2018, Secretary of Commerce Wilbur Ross, announced that he had decided
to add a question about citizenship on the 2020 census questionnaire. The Secretary
stated that he was acting at the request of the Department of Justice, which
sought improved data about citizen voting-age population for the purposes of
enforcing the Voting Rights Act’s ban on diluting the influence of minority
voters by depriving them of single-member districts in which they could elect
their preferred candidates
Civil
actions were filed alleging the Secretary’s decision violated the Enumeration
Clause of the Constitution and the requirements of the Administrative Procedure
Act. Another group of plaintiffs asserted an equal protection claim.
The
government argued that the plaintiffs lacked standing to pursue their claims. To
have standing, a plaintiff must allege an injury that is concrete,
particularized, and actual or imminent; fairly traceable to the defendant’s
challenged behavior; and is likely to be redressed by a favorable ruling.
The
Supreme Court affirmed the trial court’s conclusion that the plaintiffs had
standing. The evidence established a sufficient likelihood that adding a
citizenship question would result in noncitizen households responding to the
census at lower rates than other groups. This would cause them to be
undercounted and lead to many of the injuries they asserted.
The
government also argued the Commerce department’s decision was nonreviewable. In
some limited instances, final agency actions can be deemed nonreviewable and
committed to the agency’s discretion. Rejecting the government’s argument that
the Secretary’s decision to include a citizenship question was not reviewable
under the Administrative Procedure Act, the Supreme Court held the decision was
amenable to judicial review to ascertain compliance with the Census Act.
The
evidence showed that the Secretary was determined to add a citizenship question
from the time he entered office. He instructed his staff to make it happen and
waited while Commerce officials explored whether another agency would request
census-based citizenship data. Late in the course of this process, Commerce
officials contacted the Attorney General to ask if the Justice Department would
make the request using the Voting Rights Act as the rationale.
The
majority concluded that the Secretary had made up his mind to include a
citizenship question well before receiving Justice Department’s request, and
did so for reasons unrelated to the Voting Rights Act. The decision to add a
citizenship question could not be explained by the Justice Department’s request
for improved citizenship data to better enforce the Voting Rights Act. This was
a cynical and disingenuous pretext. There was a significant mismatch between
the decision the Secretary made and the rationale provided.
The
government claimed that Commerce was acting on a routine data request from
another agency. Unlike a typical case in which an agency might have both stated
and unstated reasons for a decision. In this case the Voting Rights rationale seemed
to the majority to have been contrived. The Trump Administration wasn’t acting
to protect the voting rights of minorities. It was seeking to intimidate and
discourage noncitizen households from responding to Census questionnaires.
Reasoned
decision making under the Administrative Procedure Act requires an explanation
for agency’s action. The justification the government offered lacked
credibility. What was provided in this case was more of a dishonest “distraction”
than a legitimate explanation. The case was remanded for further proceedings
consistent with Court’s opinion.
[1]
Leland Ware, University of Delaware. Professor Ware’s book, “A Century of
Segregation: Race, Class and Disadvantage” can be purchased from Amazon and
other on-line outlets.
