A question on the decennial census to note citizenship status does not violate the Constitution, a federal judge ruled earlier today — but it still won’t be on the 2020 form. Judge Jesse Furman issued an order blocking the addition of the question thanks to “a veritable smorgasbord of classic, clear-cut … violations” of the Administrative Procedures Act. The long-awaited ruling might put the administration in a time crunch if it hopes to win an appeal and get the question on the form:
A federal judge in New York blocked the Trump administration from asking about citizenship on the 2020 census, saying Commerce Secretary Wilbur Ross’s decision to add the question broke the law.
“Secretary Ross’s decision to add a citizenship question to the 2020 census—even if it did not violate the Constitution itself—was unlawful for a multitude of independent reasons and must be set aside,” wrote U.S. District Judge Jesse Furman, who had presided over a trial about the question last year.
The decision comes as a result of two lawsuits filed by cities, states and advocacy groups. The plaintiffs had argued adding the question ignored the Census Bureau’s own research, would lead to a significant undercount and was motivated by discrimination against immigrants. The Trump administration said it had acted lawfully and needs citizenship data to enforce the Voting Rights Act.
NPR has the order itself, which runs 277 pages, to which we’ll return later. Suffice it to say that Furman, an appointee of Barack Obama, was unhappy with the actions of the Commerce Department and the government’s conduct of the case. That has been the case all along but peaked last November when the Department of Justice moved to have the case delayed after the Supreme Court took up the question of whether Commerce Secretary Wilbur Ross could be deposed:
“Defendants’ motion makes so little sense, even on its own terms, that it is hard to understand as anything but an attempt to avoid a timely decision on the merits altogether,” Furman wrote in his latest decision. …
Elsewhere in the order, the judge called the Justice Department’s positions “galling,” “puzzling, if not sanctionable,” and accused government lawyers of insulting his intelligence. He also noted the Justice Department has lodged 12 requests to delay proceedings since early September. Such “make-work,” he said, naturally irritates the courts.
“Unless burdening plaintiffs and the federal courts with make-work is a feature of defendants’ litigation strategy, as opposed to a bug, it is hard to see the point,” Furman wrote. “To borrow from Camus, ‘one must imagine Sisyphus happy.’”
In other words, Furman wasn’t thrilled with the Trump administration in the first place. The DoJ can appeal the decision, which it will need to do soon if they want to get the question included, but there’s a problem with that strategy. This isn’t the only court where the question is being challenged:
Furman has noted that he does not expect his order to be the final word on the question’s fate. The district court ruling in New York is expected to be appealed to the 2nd U.S. Circuit Court of Appeals and, ultimately, to the Supreme Court.
In addition to the two lead cases before Furman at the U.S. District Court for the Southern District of New York, the administration is fighting five more lawsuits across the country filed by dozens of states, cities and other groups that want the question removed. A second trial over the question began earlier this month in California, and another is scheduled to begin in Maryland on Jan. 22.
Oral arguments on the Ross dispute won’t take place at the Supreme Court until next month, as well as evidentiary challenges in the other cases. The 2nd Circuit might take up an appeal of Furman’s ruling, but other cases in other circuits will still keep Commerce from being able to move forward. The Supreme Court will not be likely to take up the question unless and until multiple circuit rulings conflict on the main issue arise, which could take years. That’ll make this moot until 2030, which means President Ivanka will have to take it up with Judge Alexandria Ocasio-Cortez at that point.
It’s possible that the Supreme Court will hear an expedited appeal, given the timing and the number of cases in process that all concern the same issue. It doesn’t seem likely that they will do so before ruling on the Ross issue, and maybe not until after the 2nd Circuit gets a crack at it. That means they might not get this on the calendar until the 2019-20 session, with a decision coming too late to matter.
The other option would be to retract the original effort and redo it so that it complies with the APA. How tough could it be? Wellll, Furman’s description of the record supplied by Commerce makes that option look … unlikely:
In short (or not, as the case may be), the Court concludes that Secretary Ross’s decision to add the citizenship question to the 2020 census questionnaire, while not inconsistent with the Constitution, violated the APA in several respects. Those violations are no mere trifles. The fair and orderly administration of the census is one of the Secretary of Commerce’s most important duties, as it is critical that the public have “confidence in the integrity of the process.” Franklin v. Massachusetts, 505 U.S. 788, 818 (1992) (Stevens, J., concurring in part and concurring in the judgment). And although some may deride its requirements as “red tape,” the APA exists to protect core constitutional and democratic values: It ensures that agencies exercise only the authority that Congress has given them, that they exercise that authority reasonably, and that they follow applicable procedures — in short, it ensures that agencies remain accountable to the public they serve. …
Second, the Court concludes on the merits that Secretary Ross violated the APA in multiple independent ways. Most blatantly, Secretary Ross ignored, and violated, a statute that requires him, in circumstances like those here, to collect data through the acquisition and use of “administrative records” instead of through “direct inquiries” on a survey such as the census.
Additionally, Secretary Ross’s decision to add a citizenship question was “arbitrary and capricious” on its own terms: He failed to consider several important aspects of the problem; alternately ignored, cherry-picked, or badly misconstrued the evidence in the record before him; acted irrationally both in light of that evidence and his own stated decisional criteria; and failed to justify significant departures from past policies and practices — a veritable smorgasbord of classic, clear-cut APA violations.
On top of that, Secretary Ross acted without observing procedures required by law, including a statute requiring that he notify Congress of the subjects planned for any census at least three years in advance. And finally, the evidence establishes that Secretary Ross’s stated rationale, to promote VRA enforcement, was pretextual — in other words, that he announced his decision in a manner that concealed its true basis rather than explaining it, as the APA required him to do.
Notably, the Court reaches all of those conclusions based exclusively on the materials in the official “Administrative Record” — that is, the record of materials collected and submitted by Defendants that Secretary Ross allegedly considered, directly or indirectly, prior to making his decision. Looking beyond the Administrative Record merely confirms the Court’s conclusions and illustrates how egregious the APA violations were.
Other than that, Judge Furman, how did you like the play? The Trump administration had better hope for a SCOTUS ex machina intervention or forget this project altogether.