Issues
Can a district court order the collection of evidence outside the administrative record—including compelling a high-ranking government official’s deposition—without any evidence showing that the decisionmaker did not believe the objective reasons behind the administrative record, irreversibly prejudged the issue, or acted on a legally forbidden basis?
Was the Department of Commerce’s decision to add a citizenship question to the 2020 census unlawful—either under the Administrative Procedure Act or the Enumeration Clause of the Constitution?
In addition to determining whether the Census Bureau’s addition of a citizenship question to the 2020 Census was lawful, the Court must also determine whether the Court can order discovery outside the administrative record, including a deposition of the Secretary of Commerce. The Department of Commerce argues that the deposition substantially intrudes on the Secretary’s job because there is no showing of bad faith nor extraordinary circumstances which warrant the additional discovery. The Department of Commerce also posit that the addition of the citizenship question was not arbitrary and capricious, was in accordance with law, and did not violate the Enumeration Clause of the Constitution. The Department of Commerce finally contends that adding a citizenship question would provide more accurate citizenship information and help enforce the Voting Rights Act. However, the State of New York and the New York Immigration Coalition assert that the Secretary exhibited bad faith by submitting an incomplete record and they contend that his reasons for doing so are incomplete and pretextual. They argue that because he is uniquely and personally involved in adding the citizenship question, extraordinary circumstances warrant his deposition. The State of New York and the New York Immigration Coalition counter that adding a citizenship question would lower response rates from noncitizens and affect apportionment of representatives.
Questions as Framed for the Court by the Parties
(1) Whether the district court erred in enjoining the secretary of the Department of Commerce from reinstating a question about citizenship to the 2020 decennial census on the ground that the secretary’s decision violated the Administrative Procedure Act, 5 U.S.C. 701 et seq;
(2) whether, in an action seeking to set aside agency action under the APA, a district court may order discovery outside the administrative record to probe the mental processes of the agency decisionmaker—including by compelling the testimony of high-ranking executive branch officials —without a strong showing that the decisionmaker disbelieved the objective reasons in the administrative record, irreversibly prejudged the issue, or acted on a legally forbidden basis; and
(3) whether the secretary’s decision to add a citizenship question to the decennial census violated the enumeration clause of the U.S. Constitution.
Facts
The Constitution requires that the United States population be counted every ten years. The Census Act gives the Department of Commerce (“Department”) and the Secretary of Commerce, Wilbur Ross (“Secretary”) the authority to conduct the decennial census. The United States Census Bureau assists the Department in collecting the data.
On March 26, 2018, the Secretary issued a memorandum announcing plans to include a citizenship question on the 2020 Census. The Secretary initially claimed that his decision was based on a letter written by the Department of Justice (“DOJ”) issued earlier that year. This letter explained that citizenship statistics are critical to the DOJ’s enforcement of the Voting Rights Act of 1965 (“VRA.”) It asserted that although there are other surveys—such as the American Community Survey—which collect citizenship information, the decennial census provides the most accurate and detailed citizenship data. However, the Secretary later admitted that he had begun considering the addition of a citizenship question long before this letter.
The Census Bureau’s professional staff objected to the question, arguing that it would undermine the accuracy of the census and fail to provide the granular-level citizenship data requested by the DOJ. Additional concerns included fears that the question would lower response rates for noncitizens and increase costs for following up with those who failed to respond. However, the Secretary determined that there was insufficient empirical evidence proving that a citizenship question would materially affect response rates; he decided to add the question to the 2020 Census. The Census Bureau ultimately decided to use both administrative records and a citizenship question on the 2020 Census.
The State of New York, eighteen other states, fourteen other governmental entities, and the U.S. Conference of Mayors as well as the New York Immigration Coalition (collectively “New York”)—brought an action against the Department, the Secretary, and the Census Bureau, challenging the addition of the citizenship question to the 2020 Census. Respondent New York contends that the question’s addition is arbitrary and capricious, in violation of the Administrative Procedure Act (“APA”), and unconstitutional under the Enumeration Clause and the Due Process Clause. However, the district court ultimately dismissed one of New York’s claims, but allowed them to continue the lawsuit based on the APA claims.
In June 2018, Petitioner, the Department of Commerce, attempted to file the administrative record of all materials the Secretary considered when deciding to add the citizenship question. However, New York contends that this record is incomplete. On July 3, 2018 the Southern District Court of New York authorized certain categories of limited discovery in an effort to supplement the record. Additionally, the district court ordered the Secretary’s deposition, finding that it was warranted due to exceptional circumstances. These circumstances included the fact that the Secretary had first-hand knowledge of the Government’s claim and that taking a deposition was the only manner in which this critical information could be obtained. However, the District Court limited the deposition to four hours and required it take place at a convenient location for the Secretary. In response, the Department appealed the decision to the Court of Appeals for the Second Circuit, seeking mandamus relief—asking the Circuit Court to order the District Court to stop the Secretary’s deposition. The Second Circuit denied the petition. The Department then appealed to the Supreme Court and obtained a stay—which delayed the Secretary’s deposition until the Court could decide whether to permanently allow the deposition.
Then in January 2019, the district court held that the Department’s addition of a citizenship question to the 2020 census violated the APA. Specifically, the district court determined that the addition violated 13 U.S.C. § 6(c) and 13 U.S.C. § 141(f), and thus was not in accordance with law. The district court also concluded that the Secretary’s decision was arbitrary and capricious because the Secretary’s rationale ran counter to evidence before the agency, the Secretary failed to consider important information, the Secretary unjustifiably deviated from Department standards and practices, and the Secretary’s rationale for adding a citizenship question was pretextual While New York also asserted a Due Process claim, the district court was unable to conclude—based on the evidence in the existing record—that the addition of a citizenship question violated the Fifth Amendment’s Due Process Clause. The Department appealed the district court’s decision on the merits directly to the Supreme Court, which granted certiorari on February 15, 2019. The Supreme Court, which initially was only to hear argument for the discovery and deposition question in February 2019, rescheduled the case for April 23, 2019 and ordered briefing on the merits of the citizenship question as well.
Analysis
ADMINISTRATIVE PROCEDURE ACT
The Department first argues that the Secretary’s decision to add a citizenship question to the 2020 census was not arbitrary and capricious, thus complying the APA. The Department maintains that the district court did not provide enough deference in its arbitrary-and-capricious review of the Secretary’s decision. Additionally, according to the Department, the Secretary’s reasoning for reinstating the citizenship question was both rational and sufficient to survive the arbitrary-and-capricious review. In the memo in which he announced his decision and rationale, the Department posits, the Secretary explicitly addressed the concerns over depressed response rates but ultimately concluded that the value of accurate citizenship data for VRA enforcement outweighed the potential risks. The district court, the Department contends, impermissibly “substituted its own judgment for that of the agency” rather than faithfully applying the proper review proscribed by the APA. The Department next claims that the district court also erred in finding that the Secretary’s rationale for reinstating the citizenship question and emphasis on accurate citizenship data for VRA was mere pretext for “improper external political pressures.” According to the Department, a finding of pretext is inappropriate in this case because the Secretary’s decision and reasoning were rational. Finally, the Department posits that the district court erred in determining that the Secretary’s decision to add a citizenship question to the 2020 census was not in accordance with law. The Secretary, the Department notes, neither violated neither 13 U.S.C. § 6(c) nor 13 U.S.C. § 141(f) because federal administrative records can only be complete with citizenship data from the census and the Secretary submitted the required information concerning the citizenship question to Congress.
New York responds that the Secretary’s decision to add a citizenship question was arbitrary and capricious, thus violating the APA. The Administrative Record and undisputed empirical evidence, according to New York, clearly shows that a citizenship question on the 2020 census would lead to millions of Americans—particularly non-citizens and Hispanic individuals—refusing to respond to the census altogether. Furthermore, the Secretary’s erroneous conclusion that citizenship data from the census was necessary for effective VRA enforcement by the DOJ was contrary to the evidence. New York notes that the Secretary unreasonably disregarded this information without adequate or rational reasoning, and thus his decision to add a citizenship question was arbitrary and capricious. Next, New York asserts that the Secretary’s purported reasoning for adding a citizenship question was pretextual. Although the Secretary cited the DOJ’s interest in VRA enforcement, the Secretary and his staff “engineered” the DOJ’s request for citizenship data to disguise its political agenda of adding a citizenship question. Finally, New York argues that adding the citizenship question is contrary to 13 U.S.C. § 6(c) because the Secretary and DOJ can use other, highly-reliable administrative records for effective VRA enforcement, which would also not result in depressed census response rates. New York also maintains that adding the citizenship question is contrary to 13 U.S.C. § 141(f) because the Secretary did not submit the mandated report and information to Congress regarding the citizenship question.
CONSTITUTIONAL CLAIMS
The Department argues that adding citizenship question to the 2020 census does not violate either the Enumeration Clause of Article I Section 2 of the Constitution or the equal-protection component of the Fifth Amendment’s Due Process Clause of the Fifth Amendment. The Department notes that the census has long included demographic questions, even when the demographic questions are not strictly necessary to properly determine the “actual enumeration” of the population. Indeed, according to the Department, the many past censuses have included citizenship questions. Finally, the Department posits that the evidence does not demonstrate that the Secretary acted with discriminatory animus.
New York contends that adding citizenship question to the 2020 census violates the Enumeration Clause of the Constitution. The Enumeration Clause, according to New York, requires that the Secretary conduct the census in a manner reasonably related to the Clause’s expressed goal of obtaining an accurate enumeration of the population. But the Secretary’s decision, New York asserts, was contrary to and undermined the Clause’s expressed goal because adding citizenship question will depress the response rate and result in an inaccurate headcount. New York additionally argues that the violation is particularly egregious because the Secretary’s decision and purported reasoning is contradicted and refuted by the Administrative Record and evidence presented at trial.
BAD FAITH SHOWING
The Department argues that the Court was not authorized to order extra-record discovery because there was no “strong showing” that Secretary Ross acted in bad faith in adding the citizenship question. The Department asserts that the APA bad-faith exception is quite narrow and only allows for additional discovery on a pretextual basis when the official “did not actually believe the stated grounds on which he ultimately based his decision.” The Department contends that since there is no evidence that the Secretary did not actually believe the proffered voting-rights rationale for the citizenship question, the Court lacked the “extraordinary justification” necessary to order extra-record discovery. It further argues that just because the Secretary had “initial inclinations” supporting or opposing a proposal does not mean that he acted in bad faith. The Department also points to the administrative record to show that the Secretary held several meetings and reviewed many letters, arguing that he had fully engaged in the required deliberation process.
New York responds that the Court was justified in ordering extra-record discovery because the Secretary’s stated rationale for adding the citizenship question did not align with the administrative record’s account of the decision-making process. New York argues that the APA’s bad-faith exception to discovery limitations is far broader than the Department suggests, and that the Court only needed to show concern that the agency did not provide a complete account of the rationales for its decision. To support the validity of the bad-faith finding, New York points to the fact that the Secretary reached out to the Department of Justice (“DOJ”) to justify adding the citizenship question, despite later explaining that the Department was “responding solely to [the DOJ’s] request” in making the change. New York also argues that the Secretary had “irreversibl[y] prejudg[ed]” the decision of whether to add a citizenship question, alleging that the evidence demonstrates he had decided to add a citizenship question, and only then directed his staff to search for a passable rationale. New York also asserts that the Secretary did not adequately respond to concerns of senior Census Bureau staff that adding the citizenship question would decrease participation and harm the census’s accuracy.
PRESUMPTION OF REGULARITY
The Department maintains that the Court’s finding that the Secretary acted in bad faith violates the common-law doctrine of presumption of regularity, which requires courts to presume that executive officials are acting in good faith. The Department argues that court inquiries into executive or legislative officials’ motivations constitute a “substantial intrusion” into the branch’s operation as a whole. The Department further claims that the Court purposely adopted the “most uncharitable reading possible” of the Secretary’s decision-making process, demonstrating an improper level of suspicion that necessarily interferes with the Department’s autonomy. The Department argues that the APA requires any judicial review of an executive officer’s actions to be ultimately based on the administrative record, and that courts should defer to rationally-based agency decisions. The Department contends that maintaining a presumption of regularity is critical for overall interbranch comity because imputing bad faith onto an administrative official not only constrains executive power, but also diminishes the importance of the legislative power exercised by Senate confirmation.
New York counters that the Court adhered to the presumption of regularity when making further inquiries into the Secretary’s decision-making process, since the Secretary’s rationale for adding the citizenship question appeared incomplete. New York maintains that the presumption of regularity does not attach to an administrator’s actions when there is reason to believe that the official has supplied a “fictional account” of the decision-making process. New York argues that the court order did not violate the presumption of regularity because it was merely an attempt to get a “complete picture” of the decision-making process of adding the citizenship question, and not an inquiry into the Secretary’s “subjective mental processes.” New York also cites multiple examples when courts have ordered extra-record discovery because it suspected that an administrator had offered a pretextual rationale for a rule change. New York further argues that an order of extra-record discovery is even more legitimate when an administrator has departed from typical rulemaking procedure, and here the Secretary had departed from the testing procedures usually required by the Census Bureau to alter the census.
COMPELLING DEPOSITION
The Department argues that the Court violated the common-law presumption against compelling high-ranking administrative officials’ depositions. The Department contends that such an action is only justified in “exceptional circumstances” which are absent in the Secretary’s decision to add the citizenship question. It asserts that neither the Secretary’s personal involvement with the census change nor his collaboration with the DOJ was unusual for an agency official, and therefore there were no exceptional circumstances justifying a deposition. The Department argues that compelling the Secretary’s deposition would erode administrative agencies’ autonomy and efficiency because expanding the ability to depose high-ranking officials, who have limited time, would prevent them from performing their constitutional duty to execute the law. The Department also maintains that the Court could have acquired the sought-after information by other means, such as dispatching interrogatories or remanding the case to the agency for further explanation.
New York responds that the Court was within its rights to compel the Secretary’s deposition because the required exceptional circumstances were present. New York asserts that the Secretary was unusually personally involved in the process of adding the citizenship question, citing the fact that he repeatedly urged his staff to consider this change and made personal calls to DOJ officials when the proposal was not gaining traction. New York argues that deposing the Secretary would give the Court a unique opportunity to clarify gaps in the administrative record, and it denies that other mechanisms would suffice because multiple senior agency advisors have indicated that the Secretary was the “only person” who could provide certain background information regarding the decision-making process. New York also denies that the deposition would unduly constrain the Secretary in performing his duties, and instead it asserts that the deposition is a beneficial opportunity for the Secretary to reconcile the discrepancies between the record and his stated rationale.
Discussion
CENSUS RESPONSE RATE & RELIABILITY
The Eagle Forum Education & Legal Defense Fund, in support of the Department, argue that adding the citizenship question to the 2020 Census would not dampen the response rate. They assert that the concern of a declining response rate is merely speculative. They explain that the Census Bureau could easily follow-up with any individuals who do fail to respond to the census. The State of Oklahoma, et. al. (“Oklahoma”), also in support of the Department, agrees, arguing that non-citizens would respond because there are significant protections in place to guard their information. For instance, Oklahoma notes that the Census Bureau is legally prohibited from disclosing any personal data that can identify an individual. It explains that this protection incentivizes public participation and solidifies confidence in the Census Bureau, thereby allowing non-citizens to feel secure in responding to the Census.
The State of California (“California”), in support of New York, asserts that introducing a citizenship question to the 2020 Census would reduce the response rate, especially from non-citizens and from citizens with non-citizen relatives. California explains that a reduced response rate would provide an inaccurate census count—particularly in states with many foreign-born residents. For example, California cautions that adding a citizenship question would be damaging to its residents because it is home to over 5 million non-citizens and over 10 million foreign-born residents—more than any other state. California contends that having a lower response rate will harm its population because the decennial data ensures proper apportionment of federal and state representatives, presidential electors, and federal funding. New York agrees, adding that a reduced response rate would increase the decennial census’s cost as the Census Bureau would have to find all those who failed to respond.
THE IMPACT OF A CITIZENSHIP QUESTION ON CENSUS DATA
Oklahoma argues that including the citizenship question on the 2020 Census will provide more accurate information on the voting-age population than other available methods. They contend that other methods are only suitable for communities with populations over 65,000 people. They explain that this data can therefore only be used by 6.6% of school districts, 10.4% of urban areas, and 25% of counties nationwide. Moreover, they note that having reliable data of the voting age population is necessary to enforce the Voting Rights Act (“VRA.”) They assert that only the decennial census can provide the extremely accurate statistics necessary for enforcing the VRA as most voting-related litigation comes down to a 1% or 2% difference in the population. The Republican National Committee contends that a citizenship question is the only way to procure a reliable count of the Citizen Voting Age Population (“CVAP”), which it argues is the most useful data-collection measure for VRA enforcement. The Public Interest Legal Foundation agrees that the citizenship question is key to VRA enforcement, noting that adding the question would provide the necessary data for policing voter rolls and enforcing federal voting protections.
New York counters that there is a discriminatory purpose behind adding the citizenship question. New York argues that the Secretary intended to depress responses from certain groups based on their racial and national origin. New York explains that including this question will not provide accurate citizenship data because it would disincentivize specific groups—especially minorities and foreign-born citizens—from responding. For example, New York posits that the citizenship question would not only provide inaccurate citizenship data, but that such data would be easier and more reliable if obtained through administrative records. The Becket Fund for Religious Liberty (“Becket Fund”), in support of neither party, maintains that preserving the citizenship question without probing the Secretary’s intent would set a precedent that could make bringing other discrimination claims more difficult because the administrative record alone will rarely include evidence of a discriminatory motive behind policy changes.
ADMINISTRATIVE & JUDICIAL EFFICACY
Oklahoma asserts that allowing the Secretary’s deposition to complete the administrative record would harm high-ranking government officials. They explain that deposing the Secretary would create a precedent of exposing government officials to intrusive litigation. They argue that this would not only hamper the Executive Branch’s functioning, but also negatively impact state officials. Oklahoma cautions that their officials would be inundated with litigation based on their daily responsibilities, such as enacting laws and regulations. They assert that high-ranking state officials have more duties and less time than other witnesses, making intrusive litigation an even greater problem for them. In addition, the Immigration Reform Law Institute argues that probing an administrator’s motives would decrease the President’s power over the executive branch administration by decreasing control over agency heads. Ronald A. Cass and Christopher C. Demuth, Sr. agree, arguing that this intrusive discovery process would erode judicial legitimacy by giving the appearance that the judicial process is being politicized to focus on administrators’ individual beliefs rather than the effects of policy.
California contends that providing an incomplete administrative record will increase costs for the judiciary. It explains that courts will have to divert their attention from substantive matters to compel parties to produce complete records. Moreover, it adds that the Department’s delay in producing an extensive record is especially harmful because this case requires a resolution before the decennial census’s distribution in 2020. California also argues that compelling the Secretary’s testimony is important to hold high-ranking officials responsible for acts—such as providing an incomplete record—that are the result of bad faith or improper behavior. The Becket Fund argues that probing administrators’ motives in this instance would not set a precedent of unduly burdening agencies because the Federal Rules of Civil Procedure require a well-pleaded complaint that makes a facial showing of discrimination and they also restrict discovery to only relevant and proportional evidence.
Written by
Edited by
Acknowledgments
Additional Resources
- Adam Liptak, The Supreme Court Will Soon Consider Whether Census Will Include a Citizenship Question, New York Times (Apr. 15, 2019).
- Richard Wolf, Inside Trump Administration’s Mysterious Plan to Secure a 2020 Census Citizenship Question, USA Today (Apr. 13, 2019).
- Dartunorro Clark, Supreme Court Expands Scope of Census Citizenship Question Case, NBC News (Mar. 15, 2019).
- I.K. & S. M., A Judge Says the Trump Administration Cannot Include Citizenship in the Census, The Economist (Jan. 17, 2019).
- Tara Bahrampour, Federal Judge Rules Against Trump Administration’s Push for Citizenship Question on 2020 Census, Washington Post (Jan. 15, 2019).