Supreme Court of the United States
DEPARTMENT OF COMMERCE, ET AL., PETITIONERS
STATE OF NEW YORK, ET AL., RESPONDENT
BRIEF FOR PETITIONER
1. The Constitution requires that an "actual Enumeration" of the population be conducted every ten years to apportion Representatives in Congress among the States, and vests Congress with the authority to conduct that census "in such Manner as they shall by Law direct." The Census Act, delegates to the Secretary of Commerce the responsibility to conduct the decennial census "in such form and content as he may determine," and "authorizes him to obtain such other census information as necessary."
Exercising that delegated authority, the Secretary of Commerce, Wilbur L. Ross, Jr., made a determination to request citizenship information on the 2020 decennial census questionnaire. Questions about citizenship or country of birth (or both) were asked of everyone on all but one decennial census from 1820 to 1950, and of a substantial portion of the population on every decennial census (on the so-called "long form" questionnaire) from 1960 through 2000. A citizenship question also has been on the annual American Community Survey (ACS) questionnaire, sent to approximately one in 38 households, since the ACS's inception in 2005. The decennial census includes many demographic questions, including about sex, race, Hispanic origin, and relationship status. Individuals who receive the census questionnaire are required by law to answer fully and truthfully all of the questions, and the government must keep individual answers confidential.
2. The Secretary explained the reasons for reinstating the citizenship question to the decennial census in a March 26, 2018 memorandum. The Secretary's decision and memorandum responded to a December 12, 2017 letter (Gary Letter) from the Department of Justice (DOJ). The Gary Letter stated that citizenship data is "critical" to DOJ's enforcement of Section 2 of the Voting Rights Act of 1965 (VRA), that more granular citizenship data "would greatly assist" DOJ, and that "the decennial census questionnaire is the most appropriate vehicle for collecting that data." DOJ thus "formally requested that the Census Bureau reinstate into the 2020 Census a question regarding citizenship."
Although the Secretary previously had been considering the issue after receiving DOJ's formal request he "initiated a comprehensive review process led by the Census Bureau" that included "legal, program, and policy considerations," and asked the Census Bureau to evaluate the best means of providing the data identified in the letter. The Census Bureau initially presented three alternatives: do nothing; reinstate the citizenship question to the decennial census; or rely solely on federal administrative records to estimate citizenship data in lieu of reinstating the citizenship question. After reviewing those alternatives, the Secretary asked the Census Bureau to consider, and he ultimately adopted, a fourth option: reinstating a citizenship question to the decennial census while also using federal administrative records (i.e., a combination of the second and third options). The Secretary concluded that this option "will provide DOJ with the most complete and accurate citizenship data in response to its request."
The Secretary considered but rejected concerns that reinstating a citizenship question would reduce the response rate for noncitizens. While the Secretary agreed that a "significantly lower response rate by non-citizens could reduce the accuracy of the decennial census," he observed that the available evidence, including the Census Bureau's analysis, did not provide "definitive, empirical support" concerning the magnitude of any reduction.
Ultimately, the Secretary concluded as a matter of policy that "even if there is some impact on responses, the value of more complete and accurate citizenship data derived from surveying the entire population outweighs such concerns. The citizenship data provided to DOJ will be more accurate with the question than without it, which is of greater importance than any adverse effect that may result from people violating their legal duty to respond."
3. a. Respondents (plaintiffs below) are governmental entities (including States, cities, and counties) and non-profit organizations. The operative complaints allege that the Secretary's action violates the Enumeration Clause; is arbitrary, capricious, and not in accordance with law under the Administrative Procedure Act (APA), and denies equal protection by discriminating against racial minorities. All of the claims rest on the premise that reinstating a citizenship question will reduce the self-response rate to the census because, notwithstanding the legal duty to answer the census, some households associated with noncitizens may be deterred from doing so (and those households will disproportionately contain racial minorities).
Respondents alleged that Secretary Ross's stated reasons in his memorandum are pretextual, and that his decision was driven by secret reasons, including animus against minorities. To prove their claims, respondents asserted that "an exploration of the decision-makers' mental state" was necessary and that extra-record discovery on that issue, including deposition discovery, was thus justified. At a July 3, 2018 hearing, the district court granted respondents request for extra-record discovery. The court concluded that respondents had made a sufficiently "strong showing of bad faith," to warrant extra-record discovery.
b. On July 26, 2018, the district court dismissed respondents' Enumeration Clause claims because the "nearly unbroken practice" of Congress's including or authorizing questions about citizenship, along with the "longstanding historical practice of asking demographic questions generally," meant that asking about citizenship "is not an impermissible exercise of the power granted by the Enumeration Clause to Congress." The court did not dismiss respondents' APA and equal protection claims, concluding, among other things, that respondents had alleged sufficient facts to demonstrate standing at the motion-to-dismiss stage; the content of the census questionnaire was not committed to the Secretary's discretion by law; and respondents' allegations, accepted as true, stated a plausible claim of intentional discrimination.
c. On August 17, 2018, the district court entered an order compelling the deposition of then-Acting Assistant Attorney General (AAG) for DOJ's Civil Rights Division, John M. Gore, and on September 21 the court entered an order compelling the deposition of Secretary Ross himself. The court recognized that court-ordered depositions of high-ranking governmental officials are highly disfavored, but nonetheless concluded that '''exceptional circumstances'" existed that "compelled the conclusion that a deposition of Secretary Ross is appropriate." In the court's view, "the intent and credibility of Secretary Ross" were "central" to respondents' claims, and Secretary Ross has "'unique first-hand knowledge'" about his reasons for reinstating a citizenship question that cannot "'be obtained through other, less burdensome or intrusive means.'"
4. On October 22, 2018, this Court granted a stay as to the September 21 order compelling Secretary Ross's deposition, to "remain in effect until disposition of" a "petition for a writ of certiorari or a petition for a writ of mandamus." The Court denied a stay as to Acting AAG Gore's deposition and further extra-record discovery into Secretary Ross's mental processes, but did "not preclude the government from making arguments with respect to those orders.Ó
The government filed a petition for a writ of mandamus or, in the alternative, for a writ of certiorari. On November 16, the Court treated the petition as a petition for a writ of certiorari and granted it, ordering expedited briefing and scheduling oral argument for February 19, 2019. Meanwhile, Acting AAG Gore was deposed on October 26, trial commenced on November 5, and closing arguments were delivered on November 27.
5. On January 15, 2019, the district court issued an opinion and order memorializing its findings of fact and conclusions of law, and entered judgment for respondents.
a. The district court held that most respondents had Article III standing. The court concluded that some respondents had associational standing, and that all respondents had standing in their own right, based on four possible theories of injury-diminished political representation; loss of governmental funding; a degradation in the quality of census data; and diversion of resources-all of which are premised on the citizenship question's presence leading to an inaccurate census tally. But the court rejected respondents' alleged injury from a loss of privacy, since it rested on "pure speculation" that the government "will not comply with its legal obligations to ensure the privacy of" census responses.
The district court rejected the government's argument that respondents' purported injuries would not be fairly traceable to the government's decision to reinstate the citizenship question to the decennial census because each would materialize, if at all, only because of the independent, unlawful actions of third parties.
b. The district court then held that the Secretary's decision was "not in accordance with law," because it violates 13 U.S.C. 6(c).
Section 6(c) of the Census Act requires the Secretary to "acquire and use information available from" federal or state administrative records "to the maximum extent possible" "instead of conducting direct inquiries" on the census form, but only if doing so is "consistent with the kind, timeliness, quality and scope of the statistics required." The district court found that the Secretary violated subsection (c) because his March 26, 2018 decisional memorandum did not cite the provision. The court rejected the government's argument that the Secretary in fact considered all of the factors listed in subsection (c) in his memorandum, even though he did not cite the provision. Instead, the court deemed the Secretary to have "misunderstood his own options" because, in the court's view, reinstating the citizenship question and using federal administrative records "would produce less accurate citizenship data" than relying only on the federal administrative records.
Section 141(f)(1) of the Census Act requires the Secretary to submit a report to Congress containing "the subjects proposed to be included" in the census to the appropriate congressional committees at least three years before the census date. Section 141(f)(2) requires a similar report containing "the questions proposed to be included" in the census at least two years before the census date. Secretary Ross timely submitted both reports; although the first report did not include citizenship as a "subject" area, the second report did include the proposed citizenship question. The district court nevertheless concluded that Secretary Ross violated Section 141(f) by not including citizenship as a "subject" in a report to Congress. The court rejected the government's arguments that the contents of those informational reports are not judicially reviewable and that the Secretary had, in any event, complied with Section 141(f) by identifying citizenship as a question, which necessarily alerted Congress that it was a "subject" too.
c. The district court further held that the Secretary's decision was arbitrary and capricious because the Secretary's reasons contradicted the available evidence, the Secretary overlooked important aspects of the problem, and the Secretary departed from standard Census Bureau procedures. Although the court purported to base its findings solely on evidence in the administrative record, it also purported to bolster its findings based on extra-record evidence.
According to the district court, the "most significant" contradiction between the Secretary's decision and the evidence was that "adding a citizenship question to the census will result in less accurate and less complete citizenship data." The court also listed some supposed inaccuracies in the Secretary's memorandum; for example, the Secretary said that adding the question would be "no additional imposition" for millions of households containing citizens or lawful immigrants, even though, in the court's view, "common sense" dictates that adding the question would impose "an additional burdenone question's worth, per person, per household-on every respondent."
The district court also found that the Secretary failed to consider "important aspects of the problem," including: "whether it was necessary to respond to DOJ's request at all"; whether "more granular citizenship data is 'necessary' for enforcement of the VRA"; and whether "the Census Bureau's confidentiality obligations under 13 U.S.C. 9(a) and disclosure avoidance practices" would prevent use of census citizenship data for DOJ's purposes.
In the district court's view, the Secretary also had failed to comply with various statistical quality standards, including OMB Statistical Policy Directive Number 2, which requires the Census Bureau to "'design and administer' the census 'in a manner that achieves the best balance between maximizing data quality and controlling measurement error while minimizing respondent burden and cost.'" According to the court, the Secretary's decision to use both administrative records and a decennial census question to gather citizenship data, instead of administrative records alone, was not the "best" balance of benefits and costs.
d. The district court also found "clear that Secretary Ross's rationale was pretextual" and thus not the "real reason for his decision," because the Secretary had "made the decision to add the citizenship question well before he received DOJ's request and for reasons unrelated to the VRA." In the court's view, the mere fact that the Secretary had additional reasons for his actions, or had begun to consider reinstating the citizenship question before DOJ's formal request, was sufficient to "vacate and set aside his decision." The court further found that the Secretary was "'unwilling or unable to rationally consider' arguments against the question after he received DOJ's request, "and that "there is no basis in the record to conclude that Secretary Ross 'actually believed' the VRA-enforcement rationale he put forward."
e. The district court rejected respondents' equal protection claim, finding they had not proved any discriminatory animus on the Secretary's part.
f. As a remedy, the district court vacated the Secretary's decision to reinstate the citizenship question to the 2020 decennial census and remanded to the agency. The court also enjoined the Secretary "from adding a citizenship question to the 2020 census questionnaire based on Secretary Ross's March 26, 2018 memorandum or based on any reasoning that is substantially similar to the reasoning contained in that memorandum."
Finally, the court vacated its September 21, 2018 order compelling the deposition of Secretary Ross as moot. Respondents later withdrew their notice of the Secretary's deposition.
6. After the district court entered a final judgment, respondents moved this Court to dismiss the writ of certiorari as improvidently granted. The Court removed the case from the February argument calendar and suspended the briefing schedule pending further order.
SUMMARY OF ARGUMENT
The district court erred in enjoining the Secretary from reinstating to the decennial census a wholly unremarkable demographic question about citizenship, which has been asked in one form or another for nearly 200 years. The court compounded its error by permitting respondents to stray outside the administrative record to challenge the Secretary's decision.
I. A. Respondents lack Article III standing because their asserted injuries are not fairly traceable to the Secretary's decision to reinstate the citizenship question to the decennial census. None of respondents' alleged injuries will materialize if individuals completely and truthfully answer the census questionnaire, as required by federal law. The alleged injuries thus depend not just on third-party action, but on third-party action that is unlawful. Even worse, the unlawful third-party action is driven solely by speculative fears that the government itself will act unlawfully by using answers to the citizenship question for law-enforcement purposes. This Court has never endorsed such a capacious theory of standing, based on future illegal third-party conduct prompted by speculative fears of future illegal governmental conduct.
B. The Secretary's decision to reinstate the citizenship question "is committed to agency discretion by law" and thus judicially unreviewable. The Constitution "vests Congress with virtually unlimited discretion in conducting" the decennial census, and Congress in turn "has delegated its constitutional authority over the census" to the Secretary. The Census Act simply directs the Secretary to "take a decennial census * * * in such form and content as he may determine," and thus vests the Secretary with the same broad discretion that the Constitution confers on Congress. As a result, the statute provides "no meaningful standard against which to judge the agency's exercise of discretion". Also, a decision about what demographic questions to ask on the decennial census necessarily entails a "complicated balancing of a number of factors," underscoring its "general unsuitability for judicial review." Although the district court purported to find support for its contrary conclusion in a handful of lower-court cases, none of them involved challenges to the contents of the census form.
C. The district court erred in finding the Secretary's decision arbitrary and capricious under the APA. Arbitrary-and-capricious review is both narrow and deferential, requiring only a "rational" explanation for agency action. The Secretary easily passed that standard here. Citizenship and other demographic questions have long been a part of the decennial census despite their potential effect on response rates. And the Secretary set forth his reasons for reinstating the citizenship question in a detailed decisional memorandum, in which he evaluated four potential options for satisfying DOJ's request for citizenship data. He expressly acknowledged the very concerns respondents raise here, but made the policy judgment that "the value of more complete and accurate" citizenship data "outweighs such concerns."
Instead of evaluating that policy judgment through the deferential lens required by the APA, the district court improperly "substituted its judgment for that of the agency." The court's "most significant" reason for overruling the Secretary's policy choice was its conclusion that citizenship data in federal administrative records is somehow more complete and accurate than that same data plus data from the census. That illogical conclusion is belied by the very evidence the court relied on, which showed that asking the citizenship question would yield the citizenship information of tens of millions of individuals for whom the Bureau is currently missing data.
The district court likewise erred in concluding that the Secretary failed to consider important aspects of the problem, including whether more granular citizenship data is necessary for VRA enforcement. DOJ explained why it needed such data, and it was not arbitrary and capricious for the Secretary to rely on that explanation. The court similarly erred in concluding that the Secretary violated various statistical directives and standards, in part because they do not bind the Secretary.
D. The district court further erred in finding the Secretary's stated rationale pretextual. As long as an agency's contemporaneous explanation for its action is "rational," it does not matter if the decision-maker had other reasons for making the decision. The district court thought these principles inapplicable here because of the existence of "improper 'external political pressures,'" but an agency decision-maker's communicating with external stakeholders is perfectly commonplace and not a reason to set aside agency action under the APA. And nothing in the record supports the district court's extraordinary charge that the Secretary of Commerce lied to Congress, the judiciary, and the public. Even to find mere inconsistencies, the court strained to read every statement and action of the Secretary in the worst possible light, contrary to the longstanding presumption of regularity that attaches to Executive Branch action.
E. The district court further erred in concluding that the Secretary's decision was "not in accordance with law." Section 6(c) of the Census Act requires a policy-laden judgment about when administrative records cannot provide data of the "kind, timeliness, quality and scope of the statistics required," which is not a judicially manageable standard. Regardless, the Secretary did not violate Section 6(c): even if used "to the maximum extent possible," federal administrative records are missing citizenship information for some 35 million people, which is why the Secretary chose to supplement that incomplete data with census data. And if the Secretary's informational reports under Section 141(f) are deficient, that is a matter for Congress to address, not the courts. In any event, the Secretary complied with Section 141(f) by expressly including the citizenship question in his report under Section 141(f)(2), which necessarily alerted Congress that citizenship is now also a "subject" covered by the census questionnaire.
F. The district court properly rejected respondents' enumeration and equal-protection claims, so neither provides an alternative ground for affirmance. Demographic questions have a long tradition on the decennial census despite not being strictly necessary to conduct an "enumeration." And respondents failed to produce any evidence that the Secretary harbored discriminatory animus.
II. The district court also erred in allowing respondents to seek, and in relying in part on, evidence outside the administrative record. Although courts may stray outside the administrative record when there is "a strong showing of bad faith or improper behavior" on the part of the agency decision-maker, respondents did not make that showing here. The court's contrary conclusion was based on precisely the same circumstances it used to bolster its erroneous findings that the Secretary's decision was arbitrary and capricious and pretextual. Accordingly, they fail for the same reasons.
Because the SecretaryÕs decision was neither pretextual nor arbitrary and capricious, a fortiori it was not made in bad faith.
The judgment of the district court should be reversed.