Immigration And The Census

Tuesday, January 22, 2019

Judge Jesse Furman of the District Court for the Southern District of New York issued a 277-page opinion last week in the watershed case of The State of New York v. United States Department of Commerce. At issue was the lawfulness of Commerce Secretary Wilbur Ross’s order to include a question in the 2020 census that asks all individuals whether or not they are citizens of the United States. That order was vehemently resisted by the Census Bureau and was promptly challenged in court by New York State, which assembled a coalition that included 17 other blue states, numerous cities and towns, and private organizations whose funding allocations depend on an accurate census count. They claimed that including the citizenship question on the census would reduce the size of the total population count as illegal aliens would decline to participate in the census, lest they be put in legal jeopardy. They further insisted that none of the customary follow-up procedures could remedy that structural undercount.

Judge Furman ruled against the Department of Commerce on a standard array of administrative law grounds. He found that the various plaintiffs had standing to challenge the order; that the Department offered pretextual grounds for the decision; and that its decision was not in accordance with law, because it both ignored specific mandates in the Census Act of 1976 and that its lack of factual foundation rendered it arbitrary and capricious. Furman denied, however, all constitutional challenges to the ruling, by finding that the Department did not engage in any form of invidious discrimination against immigrants and hispanics.

When I first read the headlines about the case, I feared that Judge Furman had proceeded on inappropriate constitutional grounds. After all, the citizenship question cannot be regarded as irrelevant for the census since the distinction between citizens and aliens is absolutely critical to the basic structure of the American political system. Aliens, for example, do not get to vote, while citizens do. It would thus be wholly inappropriate to keep the citizenship question off the table as part of the overall census effort. But this was not the basis of Furman’s decision; rather, his opinion rests exclusively on technical administrative law grounds that are in fact solid and well-reasoned.

The first point in the opinion addresses statutory authorization under the 1976 Census Act. Section 141(a) provides that the Secretary of Commerce “shall” conduct the decennial census “in such form and content as he may determine, including the use of sampling procedures and special surveys. In connection with any such census, the Secretary is authorized to obtain such other census information as necessary.” Standing alone, this section contains the usual mixture of discretion and dictates, which would make it difficult for any court to second-guess Ross’s judgment. The discretion conferred on the Secretary does not depend on the application of the general Chevron doctrine that requires the courts to defer to agency determinations in interpreting unclear questions of statutory law. Section 141(a) contains an explicit grant of such powers that negates the need for any leap of faith in administrative law. Discretion is built into the statute, which explains why Chevron was not even cited in Judge Furman’s lengthy opinion.

Unfortunately for the government, the 1976 Census Act also includes Section 6. Section 6(c) states that “[t]o the maximum extent possible and consistent with the kind, timeliness, quality and scope of the statistics required, the Secretary shall acquire and use information available from any source referred to in sections (a) or (b) of this section instead of conducting direct inquiries.” Those two subsections in turn allow the Secretary to acquire additional information by asking other federal agencies and departments to supply that information, or purchase or otherwise acquire the information needed from states and local governments or from private parties. Section 6 thus offers a roadmap on how to get to the citizenship issue without asking any direct questions. Accordingly, Judge Furman is on solid ground when he stresses that the two words “shall” and “instead” in section 6(c) express a clear and consistent preference to attack the question of citizenship indirectly when other resources are available for the job, such as the American Community Survey (“ACS”). At this point, it was fatal that Secretary Ross’s proposed order increased the cost of data collection; reduced the quality of the data collected; and resulted in a “differential undercount” of households with noncitizens and hispanic populations. Furman concluded that these effects “will translate into a loss of political power and funds” for the affected groups. Furman’s conclusions do not undercut the importance of citizenship to organizing our government. But it does support Judge Furman’s finding that these irregular procedures were “not in accordance with law” under Section 706 of the 1946 Administrative Procedure Act (APA).

Judge Furman next concluded that the decision taken by Secretary Ross could not stand because it was “pretextual,” in that his stated reason did not match his actual behavior. Ross claimed that he had a request from the Department of Justice (DOJ) to supply this information to aid it in the enforcement of the Voting Rights Act of 1965 (VRA). The difficulty with that argument was three-fold. First, at no point in the 63 years of vigorous enforcement of the VRA did any DOJ under any administration ask that information. Indeed, the citizenship question was last included on the Census in 1950, fifteen years before the VRA was enacted. Second, the decision to ask for citizenship information was made before any request by the DOJ, which further undermined Ross’s purported justification. That second charge led to the third difficulty with Ross’s argument: the Judge found that the action in question was “arbitrary and capricious,” and therefore invalid under Section 706 of the APA.

At this point, the issue is muddier because that elusive three-word phrase “arbitrary and capricious” has spawned a multiplicity of standards. Dating back to 1983, the Supreme Court announced a “hard look” standard in Motor Vehicle Manufacturers v. State Farm that required administrative agencies to take all relevant information into account and avoid incorporating irrelevant information into its analysis of any proposed regulation. That standard is hopelessly high, and so many lower court cases hold, as in the 2015 Fifth Circuit decision in Gulf Restoration Network v. McCarthy, that arbitrary and capricious review is “extremely limited and highly deferential.” In general, I incline toward the second and lower of these standards on these technical issues, where judicial competence is at its low ebb. But it is highly unlikely that the difference between these competing standards will prove decisive, given that the technical staff of the Census Board was squarely against Ross’s initiative, with powerful objections that Furman spelled out in painful detail.

Fortunately, Judge Furman refused to strike down Ross’s question on constitutional grounds. In a sense, this conclusion was unnecessary for the decision, but Furman included it to establish a record on this point in case his administrative law conclusions were rejected. The underlying dispute was whether Ross’s order was constitutionally tainted by a hidden motive to undercut the status of minority and immigrant communities. Under the 1976 Supreme Court decision in Washington v. Davis, the applicable standard looks to intention, not to effect. On the factual question, Furman concluded, correctly, that the plaintiffs took a litigation risk in pressing this claim without waiting for the authorization to take Ross’s deposition. Moving quickly meant that their sketchy case fell short. Furman did, however, gave a narrow reading of the Supreme Court’s 2018 decision in Trump v. Hawaii, which upheld the administration’s vetting procedures for allowing foreign nationals from dangerous countries into the United States. Furman concluded that the high degree of constitutional deference for any “facially neutral policies” only applies to the “national security and foreign affairs context.” To be sure, the executive always plays a more powerful role in foreign affairs, but it does not necessarily follow that the President’s discretion is sharply limited in domestic affairs, especially when his actions receive Congressional authorization. The cases are not in perfect harmony, but it should be possible to duck that issue here. The administration won in Trump v. Hawaii, in large part because an exhaustive interdepartmental review supported the various portions of his exclusion order. Similar processes and findings were wholly lacking here.

The last point of note is the choice of remedy in the case. The usual rule of administrative law “vacates” the decision below and “remands” it to the Secretary to try again. Furman was correct to conclude that the Secretary could not make a case that the defects in question were so marginal that the question should remain on the census until the bugs were worked out, given that the objections to this question were grounded on deep substantive concerns, and not small technical or marginal issues. But Furman did, in response to the plaintiff’s request, take the somewhat unusual step of giving the plaintiffs injunctive relief so that Secretary Ross could not reissue the old order with only a few cosmetic changes to keep his preferred policy in place.

My view is that the Trump administration will fall short in its effort to reverse this decision. Administrative law requirements bind the Trump administration as much as any other.


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