Department of Commerce v. New York

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Department of Commerce v. New York
Term: 2018
Important Dates
Argument: April 23, 2019
Outcome
Affirmed in part, reversed in part, and remanded
Vote
5-4
Majority
Chief Justice John G. Roberts • Ruth Bader Ginsburg • Sonia Sotomayor • Elena Kagan • Stephen Breyer
Dissenting
Clarence Thomas • Samuel Alito • Neil Gorsuch • Brett Kavanaugh

## Contents

* 1 Timeline
* 2 Background
* 2.1 District court ruling
* 2.2 Appeal to the United States Supreme Court
* 3 Questions presented
* 4 Audio
* 5 Transcript
* 6 Outcome
* 6.1 Opinion
* 6.1.1 Part III: Enumeration Clause
* 6.1.2 Part IV-A: Judicial review
* 6.1.3 Part IV-B: Application of the arbitrary-or-capricious test
* 6.1.4 Part IV-C: Census Act
* 6.1.5 Part V: Inconsistencies with the administrative record
* 6.2 Concurring and dissenting opinions
* 6.2.1 Justice Clarence Thomas
* 6.2.2 Justice Stephen Breyer
* 6.2.3 Justice Samuel Alito
* 6.3 Text of the opinion
* 7 Impact
* 8 See also
* 9 External links
* 10 Footnotes

See also: Challenges to citizenship question on 2020 U.S. census

Department of Commerce v. New York is a case that was decided by the United States Supreme Court in which the court ruled that the Trump administration's decision to add a citizenship question to the U.S. census did not violate the Enumeration Clause or the Census Act, but that Commerce Secretary Wilbur Ross' rationale for the decision was inconsistent with the administrative record. The court held 5-4 to affirm in part, reverse in part, and remand the case to the agency for further proceedings. Oral arguments were held on April 23, 2019, during the court's 2018-2019 term. The case came on a writ of certiorari to the United States District Court for the Southern District of New York.[1][2]

HIGHLIGHTS

* The case: In March 2018, Commerce Secretary Wilbur Ross announced that the 2020 census would include a question about citizenship to help the U.S. Department of Justice (DOJ) enforce voting rights. The addition of the question was then challenged by some states and civil rights groups. They argued that households with individuals residing in the country without legal permission would be less likely to respond to the census, resulting in an inaccurate count.

* The issues: (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.
(3) Whether the secretary of commerce's decision to add a citizenship question to the decennial census violated the Enumeration Clause of the U.S. Constitution, Art. I, §2, CL. 3.[3]

* The outcome: The court held 5-4 to affirm in part, reverse in part, and remand the case to the agency for further proceedings. The justices found that Ross' decision to add the citizenship question to the census did not violate the Enumeration Clause or the Census Act, but that his rationale for the decision was inconsistent with the administrative record.[2]

Why it matters: The ruling intervened in the exercise of delegated congressional authority to invoke an exception for evaluating agency decisions beyond the scope of the administrative record on what it called a "strong showing of bad faith or improper behavior" drawn from the 1971 case Citizens to Preserve Overton Park v. Volpe. The dissenting justices argued that the exception opens a new legal avenue for challengers to contest administrative actions based purely on pretext.[2]

You can review the lower court's opinion here.[4]

For a full timeline of legal challenges to the citizenship question on the 2020 U.S. census, click here.

## Timeline[edit]

The following timeline details key events in this case:

* June 27, 2019: Decision issued by the United States Supreme Court
* April 23, 2019: Oral argument
* February 15, 2019: U.S. Supreme Court agreed to hear case
* January 25, 2019: Petition filed with U.S. Supreme Court
* January 15, 2019: United States District Court for the Southern District of New York vacated Secretary Wilbur Ross’s decision to add citizenship question to 2020 census questionnaire

## Background[edit]

See also: Challenges to citizenship question on 2020 U.S. census

Did you know?
A question about citizenship has appeared intermittently on the U.S. census since 1820. The question last appeared on a small sample (one-sixth) of the 2000 census forms.[5]

In March 2018, Commerce Secretary Wilbur Ross announced that the 2020 census would include a question about citizenship in order to help the U.S. Department of Justice (DOJ) enforce the Voting Rights Act. The question asks, "Is this person a citizen of the United States?"

The addition of the question was challenged by some states and civil rights groups. The challengers argued that households with individuals residing in the country without legal permission would be less likely to respond to the census, resulting in an inaccurate count.

### District court ruling[edit]

Judge Jesse Furman of the United States District Court for the Southern District of New York issued a ruling in a consolidated case on January 15, 2019, holding that Ross violated the Administrative Procedure Act (APA) by, in his view, not properly following APA procedure when including a question regarding citizenship status in the 2020 census.[6][4]

Plaintiffs in the case had also argued that Ross violated the equal protection component of the U.S. Constitution's Due Process Clause. Furman, however, held that the due process claims fell short because the administrative record in the case did not demonstrate discrimination as a motivating factor for Ross' decision.[6]

The case consolidated two legal challenges before the Southern District of New York: State of New York, et al. v. United States Department of Commerce, et al. and New York Immigration Coalition, et al. v. United States Department of Commerce, et al. The plaintiffs in the cases included a coalition of 18 states and the District of Columbia, 15 cities and counties, the United States Conference of Mayors, and a group of advocacy organizations.[6]

### Appeal to the United States Supreme Court[edit]

The U.S. Department of Justice appealed to the United States Supreme Court and requested that the court bypass an appellate court decision in order to issue a ruling in time for the 2020 census. On February 15, 2019, the United States Supreme Court announced that it would hear the case.

The United States Supreme Court agreed on March 6, 2019, to broaden the scope of the case to also consider a lower court ruling from Judge Richard Seeborg of the United States District Court for the Northern District of California claiming that the citizenship question violates the U.S. Constitution's Enumeration Clause.

## Questions presented[edit]

The petitioner presented the following questions to the court:[3]

Questions presented:

* 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.
* 3.) Whether the secretary of commerce's decision to add a citizenship question to the decennial census violated the Enumeration Clause of the U.S. Constitution, Art. I, §2, CL. 3.

## Audio[edit]

Your browser doesn't support the audio tag.

## Transcript[edit]

## Outcome[edit]

The court held 5-4 to affirm in part, reverse in part, and remand the case to the agency for further proceedings.[2] The justices ruled that the Trump administration's decision to add the citizenship question to the census did not violate the Enumeration Clause or the Census Act, but that Commerce Secretary Wilbur Ross' rationale for the decision was inconsistent with the administrative record. Chief Justice John Roberts delivered the opinion, which was joined in part by the following justices:

* The justices ruled unanimously in Parts I and II of the decision, which provided background on Commerce Secretary Wilbur Ross' decision to add a citizenship question to the 2020 U.S. Census and affirmed that "at least some" of the respondents in the case had Article III standing.
* Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh joined in Parts III, IV-B, and IV-C. Part III held that the citizenship question did not violate the Enumeration Clause. Part IV-B held that the evidence before Ross supported his decision to add the citizenship question to the census. Part IV-C held that Ross' decision did not violate the Census Act.
* Justices Clarence Thomas, Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, Elena Kagan, and Brett Kavanaugh joined in Part IV-A, which ruled that Ross' action was subject to judicial review.
* Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan joined in Part V of the decision, which held that Ross' rationale for adding the citizenship question in order to support enforcement of the Voting Rights Acts was inconsistent with the administrative record.

Justice Clarence Thomas filed an opinion concurring in part and dissenting in part, which was joined by Justices Neil Gorsuch and Brett Kavanaugh. Justice Stephen Breyer filed an opinion concurring in part and dissenting in part, in which Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan joined. Justice Samuel Alito filed an opinion concurring in part and dissenting in part.[2]

### Opinion[edit]

Chief Justice John Roberts delivered the opinion for the court. In Parts I and II of the opinion, Roberts began by reviewing the facts of the case and determining whether the respondents had Article III standing. The justices all concurred that "at least some" of the respondents in the case had standing. Roberts then proceeded to examine the constitutional and procedural arguments in the case.[2]

#### Part III: Enumeration Clause[edit]

Roberts, joined by Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh, stated that Congress passed legislation delegating broad authority to the Secretary of Commerce to administer the census. The justices examined the historical record and concluded that Congress had sought—or allowed the Secretary of Commerce to seek—citizenship information on the census as early as 1820. Roberts wrote, "Here, as in other areas, our interpretation of the Constitution is guided by a Government practice that 'has been open, widespread, and unchallenged since the early days of the Republic.' In light of the early understanding of and long practice under the Enumeration Clause, we conclude that it permits Congress, and by extension the Secretary, to inquire about citizenship on the census questionnaire."[2]

#### Part IV-A: Judicial review[edit]

See also: Judicial review

Roberts, joined by Justices Clarence Thomas, Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, Elena Kagan, and Brett Kavanaugh, held that Ross' decision to add the citizenship question to the census was subject to judicial review. The justices noted that the Administrative Procedure Act does not call for judicial review in situations where the an agency's decision is “committed to agency discretion by law.” However, the justices stated that the discretion granted to the Secretary of Commerce through the Census Act is not unbounded and is not considered to be a type of administrative decision that the court traditionally considers to be committed to agency discretion. Roberts explained that those exceptions are limited to narrow categories of administrative decisions, such as decisions not to enter into enforcement proceedings or certain personnel actions by intelligence agencies in the interest of national security.[2]

"The Secretary’s decision to reinstate a citizenship question is amenable to review for compliance with ... provisions of the Census Act, according to the general requirements of reasoned agency decisionmaking," Roberts wrote. "Because this is not a case in which there is 'no law to apply,' the Secretary’s decision is subject to judicial review."[2]

#### Part IV-B: Application of the arbitrary-or-capricious test[edit]

See also: Arbitrary-or-capricious test

The justices applied the Administrative Procedure Act's arbitrary-or-capricious test to further review Ross' decision. In applying the test, the justices did not substitute their own judgment for that of Ross, but rather examined Ross' decision making in order to determine if it was reasonable in light of the evidence. Roberts, joined by Justices Clarence Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh, found that the evidence before Ross supported his reasonable decision to add the citizenship question to the census and did not violate the Administrative Procedure Act's arbitrary-or-capricious standard.[2]

"The Secretary justifiably found the Bureau’s analysis inconclusive," Roberts wrote. "Weighing that uncertainty against the value of obtaining more complete and accurate citizenship data, he determined that reinstating a citizenship question was worth the risk of a potentially lower response rate. That decision was reasonable and reasonably explained, particularly in light of the long history of the citizenship question on the census."[2]

#### Part IV-C: Census Act[edit]

Roberts, joined by Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh, held that Ross' actions were consistent with the provisions of the Census Act at issue in the case. Those provisions require the secretary to (1) acquire administrative records from other federal agencies and state and local governments; (2) use that information to the maximum extent possible “instead of conducting direct inquiries”; and (3) report to Congress about the department's plans for the census.[2]

Roberts wrote, "As [Ross] explained, administrative records would not, in his judgment, provide the more complete and accurate data that DOJ sought He thus could not, 'consistent with' the kind and quality of the 'statistics required,' use administrative records instead of asking about citizenship directly." Roberts further concluded that Ross' reports to Congress "fully informed Congress of, and explained, his decision."[2]

#### Part V: Inconsistencies with the administrative record[edit]

Roberts, joined by Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan, held that Ross' rationale for adding the citizenship question in order to support enforcement of the Voting Rights Acts was inconsistent with the administrative record. The justices invoked "a narrow exception to the general rule against inquiring into 'the mental processes of administrative decisionmakers'" drawn from the 1971 case Citizens to Preserve Overton Park v. Volpe. "On a 'strong showing of bad faith or improper behavior,'" Roberts wrote, "such an inquiry may be warranted and may justify extra-record discovery."[2]

Roberts concluded, "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."[2]

### Concurring and dissenting opinions[edit]

#### Justice Clarence Thomas[edit]

Justice Clarence Thomas filed an opinion concurring in part and dissenting in part, which was joined by Justices Neil Gorsuch and Brett Kavanaugh. Thomas dissented from Part V of the opinion and described the ruling as an "unprecedented departure from our deferential review of discretionary agency decisions." Thomas argued that the Citizens to Preserve Overton Park v. Volpe precedent directs courts reviewing agency actions to grant a "presumption of regularity" to the executive branch. "This conclusion is extraordinary," Thomas wrote. "The Court engages in an unauthorized inquiry into evidence not properly before us to reach an unsupported conclusion. Moreover, each step of the inquiry offends the presumption of regularity we owe the Executive. The judgment of the District Court should be reversed."[2]

Thomas concurred with the court's ruling in Part IV-B of the opinion that the Ross' decision did not violate the arbitrary-or-capricious test. "The Court correctly applies this standard to conclude that the Secretary’s decision survives ordinary arbitrary-and-capricious review," Thomas wrote. "That holding should end our inquiry."[2]

Thomas concluded by claiming that the court's decision deviated from traditional administrative law principles and could open a new avenue for challenges to administrative actions based on pretext. "Now that the Court has opened up this avenue of attack, opponents of executive actions have strong incentives to craft narratives that would derail them," Thomas wrote. "The Court’s decision enables partisans to use the courts to harangue executive officers through depositions, discovery, delay, and distraction. The Court’s decision could even implicate separation-of-powers concerns insofar as it enables judicial interference with the enforcement of the laws."[2]

#### Justice Stephen Breyer[edit]

Justice Stephen Breyer filed an opinion concurring in part and dissenting in part, in which Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan joined. Breyer concurred with Parts I, II, IV–A, and V of the decision. He dissented from Part IV-B and argued that Ross' decision to add the citizenship question to the census was, in fact, arbitrary or capricious in violation of the Administrative Procedure Act. Breyer cited the 1983 case Motor Vehicle Manufacturers Association of the United States, Inc. v. State Farm Mutual Automobile Insurance Company in claiming that Ross "failed to 'articulate a satisfactory explanation' for his decision, 'failed to consider ... important aspect[s] of the problem,' and 'offered an explanation for [his] decision that runs counter to the evidence,' all in violation of the APA."[2]

#### Justice Samuel Alito[edit]

Justice Samuel Alito filed an opinion concurring in part and dissenting in part. Alito concurred with Parts I, II, III, IV–B, and IV–C of the opinion. He dissented from Part IV-A, arguing that Ross' decision was committed to agency discretion by law and, therefore, not subject to judicial review under the Administrative Procedure Act. He further argued that the Census Act calls for congressional review rather than judicial review. "The Constitution gives Congress the authority to 'direct' the 'Manner' in which the census is conducted," Alito wrote. "By imposing the §141(f) reporting requirements, Congress retained some of that supervisory authority. It did not transfer it to the courts."[2]

Alito also dissented from Part V of the opinion and agreed with Justice Thomas that the decision could encourage future "widespread judicial inquiry" into the motivations of agency actions. "To put the point bluntly, the Federal Judiciary has no authority to stick its nose into the question whether it is good policy to include a citizenship question on the census or whether the reasons given by Secretary Ross for that decision were his only reasons or his real reasons," Alito wrote. "Of course, we may determine whether the decision is constitutional. But under the considerations that typically guide this Court in the exercise of its power of judicial review of agency action, we have no authority to decide whether the Secretary’s decision was rendered in compliance with the Administrative Procedure Act."[2]

### Text of the opinion[edit]

Read the full opinion here.

## Impact[edit]

Though the court did not find that Ross' decision to add the citizenship question to the 2020 census violated the Administrative Procedure Act's arbitrary-or-capricious test, the justices invoked an exception for inquiring into the mental processes of administrative decisionmakers beyond the scope of the administrative record "on a 'strong showing of bad faith or improper behavior'" drawn from the 1971 case Citizens to Preserve Overton Park v. Volpe.[2]

Justices Clarence Thomas and Samuel Alito argued critically that invoking the exception would open a new legal avenue for challengers to contest administrative actions based on pretext. "With today’s decision, the Court has opened a Pandora’s box of pretext-based challenges in administrative law," wrote Thomas in his dissent. "Opponents of future executive actions can be expected to make full use of the Court’s new approach."[2]

## See also[edit]

* Supreme Court cases, October term 2018-2019

* Supreme Court of the United States

* History of the Supreme Court

## External links[edit]

* U.S. Supreme Court docket file - Department of Commerce v. New York (petitions, motions, briefs, opinions, and attorneys)
* SCOTUSblog case file for Department of Commerce v. New York

## Footnotes[edit]

1. ↑ Supreme Court of the United States, "18-966 Department of Commerce v. New York," accessed February 18, 2019
2. ↑ 2.00 2.01 2.02 2.03 2.04 2.05 2.06 2.07 2.08 2.09 2.10 2.11 2.12 2.13 2.14 2.15 2.16 2.17 2.18 2.19 2.20 2.21 2.22 Supreme Court of the United States, "Department of Commerce v. New York," June 27, 2019
3. ↑ 3.0 3.1 SCOTUSblog, "Department of Commerce v. New York," accessed February 18, 2019 Cite error: Invalid `<ref>` tag; name "sb" defined multiple times with different content
4. ↑ 4.0 4.1 SCOTUSblog, "Department of Commerce v. New York," accessed February 13, 2019
5. ↑ Center for Immigration Studies, "A History of the Census Bureau's Birthplace and Citizenship Questions in One Table," June 8, 2018
6. ↑ 6.0 6.1 6.2 Route Fifty, "Federal Judge Rules Against Trump Administration's Citizenship Question on Census," January 15, 2019

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