On 27 June 2019, the US Supreme Court ruled in Department of Commerce v. New York, No. 18–966, 588 U.S. (2019) that the Trump Administration could not add a citizen question to the upcoming 2020 national census. In a convoluted decision, Chief Justice Roberts, together with the four liberals, held the Trump Administration’s rationale for adding the citizen question was merely pretextual and therefore in violation of the Administrative Procedures Act. In other words, Chief Justice Roberts sent a strong signal that he did not like being lied to.
Adding the citizenship question to the upcoming 2020 census became very controversial after some groups, such as the ACLU, had said that it would deter many illegal immigrants from participating in the census. This, in turn, would lower the official population numbers for States with a large portion of illegal immigrants, mainly California. This could have a considerable impact on the apportionment of federal funds and seats in the House of Representatives which directly depends on population numbers (US Constitution, Article 1, Clause 3). ACLU claimed that adding the citizenship question would stop about 6.5 million people from entering their details in the census which could lead to the State of California loosing billions of dollars in federal funding as well as between one and three seats in the House of Representatives (The Hill). On other hand, the Department of Justice of the Trump Administration argued that the citizenship question was necessary in order to comply with the Voting Rights Act and that this question had been asked during all but one census from 1820 to 2000. But in January 2019, a District Judge (an Obama appointee) disagreed, holding that the rationale was ‘pretextual’ and the decision had been made in violation of the Administrative Procedures Act because it failed to ‘consider all important aspects of a problem’ as required by the Administrative Procedures Act, implying also that the true intention behind the citizenship question was to deter participation (Bloomberg). The ruling was appealed directly to the US Supreme Court, bypassing the Court of Appeals.
At the Supreme Court, the Majority (Chief Justice Roberts joined by Justices Thomas, Alito, Gorsuch and Kavanaugh) held that the Enumeration Clause (Article 1, sections 1 & 2 of the Constitution) permitted a citizen question on a census. Therefore, in theory, there was nothing preventing a presidential administration from adding the question to the 2020 census (pp11-13).
Secondly, the Majority (joined by Justices Thomas, Ginsburg, Breyer, Sotomayor, Kagan and Kavanaugh) held that a decision to add the citizen question was reviewable under the Administrative Procedure Act. The Administrative Procedure Act empowers the Courts to invalidate decisions of executive agencies which are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law” (5 U. S. C. §706(2)(A)). Although the Administrative Procedures Act does not allow for a review in cases where a decision is “committed to agency discretion by law” (§701(a)(2)), this exception does not apply to a national census. In this case, the Census Act does not leave an unfettered discretion and, therefore, a decision to add any question to any national census remains subject to judicial review under Administrative Procedures Act (pp13-16).
Thirdly, the Majority (Chief Justice Roberts joined by Justices Thomas, Alito, Gorsuch and Kavanaugh) held that the Trump Administration’s decision to add the citizen question to the 2020 census was supported by evidence, made following a proper examination of the Census Bureau’s analysis of various methods of collecting data and overall reasonable. The decision was not ‘arbitrary’ or ‘capricious’ under the Administrative Procedures Act (pp16-20).
Nevertheless, ultimately, the Majority (Chief Justice Roberts joined by Justices Ginsburg, Breyer, Sotomayor and Kagan) ruled that the Trump Administration’s decision was unlawful because the rationale given was pretextual. The Majority believed that “the decision to reinstate a citizenship question cannot adequately be explained in terms of [the Department of Justice]’s request for improved citizenship data to better enforce the [Voting Rights Act].” This is because the Secretary of Commerce began preparations for adding the citizenship question a week into his tenure, at the point when no argument was being raised regarding the Voting Rights Act. In fact, there was evidence that the Director of Policy at the Commerce Department was eliciting requests for citizenship data from the Department of Justice and the Department of Homeland Security before invoking the Voting Rights Act. The Majority agreed that, normally, an agency could have both stated and unstated reasons for any decision but, in the case of the census question, the Trump Administration provided only one argument (the argument based on the Voting Rights Act) and this argument turned out to be false. Consequently, the decision to add the citizenship question to the 2020 census violated the Administrative Procedures Act because it breached the requirement to offer a genuine justification behind the agency’s action (pp23-28).
Justices Thomas, Gorsuch and Kavanaugh submitted a partly dissenting opinion criticising the ultimate decision of the Court to invalidate the decision to add the citizenship question on the grounds that the rationale offered by the Trump Administration was pretextual. The dissenters argue that “for the first time ever, the Court invalidates an agency action solely because it questions the sincerity of the agency’s otherwise adequate rationale” (p1) and that “the Court engages in an unauthorized inquiry into evidence not properly before us to reach an unsupported conclusion” (p5). They remind the Majority that the US Supreme “Court has never held an agency decision arbitrary and capricious on the ground that its supporting rationale was ‘pretextual’” (p6). They also claim that the Majority’s reasoning is contrary to the long-standing precedent on the ‘presumption of regularity’ dating back to United States v. Chemical Foundation, Inc., 272 U. S. 1, 14–15 (1926) (p7). Finally, the dissenters also warn that the Majority “has opened a Pandora’s box of pretext-based challenges in administrative law” (p13).
The case of Department of Commerce v. New York, No. 18–966, 588 U.S. (2019) is yet another example of Chief Justice Roberts trying to find a common ground between the liberals and conservatives on the Court. Beyond that, however, the Chief Justice appears also to be sending a message to the Trump Administration that he will not accept apparent lies. The Court is ready to give the Administration some degree of deference, but providing a rationale which could easily be disproven will not fly. With this highly politicised case, Chief Justice Roberts attempts to stay above politics and, in the process, is positioning himself as a new Swing Vote. More about Chief Justice Roberts and his position on the Court could be found here: The Jurist’s Corner.