By Lisa Soronen
U.S. Supreme Court Chief Justice John Roberts joined his more liberal colleagues (Justices Ruth Bader Ginsburg, Steven Breyer, Sonia Sotomayor and Elise Kagan) in at least stalling the issue of whether the U.S. Census Bureau may include a question about citizenship on the 2020 census, concluding the reasons Commerce Secretary Wilbur Ross gave for adding the citizenship question to the 2020 census were pretextual in violation of the Administrative Procedures Act (APA).
Presumably, Ross will now be able to offer different reasons for why he wanted to add the citizenship question. If he chooses to do so, those reasons may also be challenged in court as pretextual or discriminatory. If he chooses to offer no different reasons, presumably, the 2020 census won’t contain a citizenship question.
Since 1950 the decennial census has not asked all households a question about citizenship. In a March 2018 memo, Ross announced he would reinstate the question at the request of the Department of Justice (DOJ), “which sought improved data about citizen voting-age population for purposes of enforcing the Voting Rights Act (VRA).”
According to Roberts, additional discovery revealed the following: “that the Secretary was determined to reinstate a citizenship question from the time he entered office; instructed his staff to make it happen; waited while Commerce officials explored whether another agency would request census-based citizenship data; subsequently contacted the Attorney General himself to ask if DOJ would make the request; and adopted the Voting Rights Act rationale late in the process.”
The court agreed “to a point” with the federal government that there was “nothing objectionable or even surprising in this.” But, the APA requires that federal agencies don’t act arbitrarily and capriciously. Here, “viewing the evidence as a whole,” Ross’s decision to include the citizenship question “cannot be adequately explained in terms of DOJ’s request for improved citizenship data to better enforce the VRA.”
Roberts’ final sentences in the opinion are first sympathetic to the secretary of commerce but he ends with a stiff rebuke: “We do not hold that the agency decision here was substantively invalid. But agencies must pursue their goals reasonably. Reasoned decisionmaking under the Administrative Procedure Act calls for an explanation for agency action. What was provided here was more of a distraction.”
Lisa Soronen is executive director of the State and Local Legal Center and a regular contributor to the NCSL Blog on judicial issues.