Comparative Labors and Democratic Dysfunction

Mark Graber

For the symposium on Sanford Levinson and Jack M. Balkin, Democracy and Dysfunction (University of Chicago Press, 2019).

Democracy and Dysfunction joins a distinguished list of seminal works on constitutionalism in the United States that have universal titles. The tradition is honorable.  Participants include such classics as John Hart Ely’s Democracy and Distrust, Ronald Dworkin’s Taking Rights Seriously, Gerald Gunther’s Constitutional Law, and, for that matter, Sandy Levinson’s Constitutional Faith and Jack Balkin’s Constitutional Redemption. Each work in different ways contributes substantially to better understandings and evaluations of the constitutional experience in the United States.  Democracy and Dysfunction does so by insisting we pay more attention to the structures of American constitutional politics, which include state equality in the Senate and notions of political time, than to the latest Supreme Court decisions.  The tradition is problematic.  Distinguished studies of constitutionalism in the United States with universal titles risk confusions between the constitutional experience and the constitutional experience in the United States. Past works in this tradition imply that the United States is the modal constitutional democracy, that the extent a regime differs from the United States that regime is less of a constitutional democracy.  Democracy and Dysfunction highlights severe problems with constitutional democracy in the United States, but the lack of comparative perspective leads Levinson and Balkin to focus on distinctive American explanations and solutions to what may be more global problems, most notably, at least from the perspective of this essay, increases in global economic inequality, decreases in the power of unions across the universe of constitutional democracy and the challenges of putting together progressive coalitions that combine progressive cosmopolitanism and economic populism.


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Posted 9:30 AM by Mark Graber [link]

Defensive Certiorari Grants

Gerard N. Magliocca

Supreme Court watchers know all about "defensive certiorari denials." This is when a Justice votes to deny review of a case because she is worried that a grant will lead to a bad outcome on the merits.

The Alabama abortion law just enacted may present the opposite situation. The lower courts will make quick work of the statute, relying on Roe v. Wade and Planned Parenthood v. Casey. Then Alabama will file a certiorari petition. At first glance, you might think that the four liberal Justices would vote against review, fearing that the Court will overrule these cases.

They may instead view this as the best vehicle for reconsidering Roe and Casey. Here's why. First, forcing the Court to consider this issue in a presidential election year will put more pressure on the Court's uncertain members about whether they want to walk the plank on this issue. Second, the Alabama law gives the Court no way to evade the basic question. Neither statutory construction nor a narrow ruling is possible for a law that expressly bans all abortions with only one exception. Third, the lack of exceptions and the stiff criminal penalties make the Alabama statute an especially unattractive case for the Justices interested in narrowing abortion rights.

All three of these reasons might explain why five Justices would deny review of Alabama's certiorari petition. But only four Justices need to vote yes. Indeed, you could even argue that they should do so after the District Court enters its inevitable judgment (assuming one party files a petition). After all, what will review in the Eleventh Circuit add to the story? Basically nothing. So don't be surprised if the case gets to the Court quickly.
Posted 9:16 PM by Gerard N. Magliocca [link] (27) comments

Does Trump represent the end of the Reagan regime, or the beginning of something far more dangerous?

JB

In today's New York Times, Tom Edsall gives an outstanding summary of the academic debate over whether Donald Trump is a disjunctive president, or something far more dangerous. His column includes quotes from Theda Skocpol, Steven Levitsky, Daniel Ziblatt, Julia Azari, Scott Lemieux, and, of course, Stephen Skowronek himself.

Most of the commentators argue that Trump does not fit well into Skowronek's model of presidential leadership, and that he raises distinctive dangers of authoritarianism that we simply have not seen in the past. Azari and Lemieux argue that we may be headed into a long and exhausting conflict between two evenly matched, ideologically polarized parties.

Skowronek gives a nuanced account of how things might play out. I am the only optimist in the bunch.
Posted 9:14 AM by JB [link]

Surplus and Deficit: Resources of Legitimation in the “Crisis of Democracy”

Guest Blogger

For the symposium on Sanford Levinson and Jack M. Balkin, Democracy and Dysfunction (University of Chicago Press, 2019).
Jedediah Britton-Purdy[*]
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Posted 9:00 AM by Guest Blogger [link]

Greg Ablavsky on the Origins of Dual Federalism

Richard Primus

The purpose of this post is to call attention to an excellent new article in the Yale Law Journal by Gregory Ablavsky.  It's called Empire States: The Coming of Dual Federalism.  The citation is 128 YLJ 1792, or you can just find it here:

https://www.yalelawjournal.org/article/empire-states

Without attempting to explain everything that makes this article worth reading, I'll offer this: Ablavsky argues that the conventional view of the Founding as a moment when the Founders "split the atom of sovereignty" gets a major piece of the story backwards.  In practice, the major change in the structure of sovereignty worked by the adoption of the Constitution was not the replacement of a system whereby sovereignty was lodged in a single location to one where it was divided between state and national governments.  Instead, the Founding was a moment when the number of places where sovereign power was located was definitively *reduced* to only two (i.e., the state and national governments).  Before that moment, Ablavsky points out, states were not as practical matters the wielders of sovereign authority.  On the ground, they competed with a dizzying array of other wielders of power--towns, counties, juries, churches, corporations and charter companies, secessionists and insurrectionists, and so on.  Seen from this perspective, a major piece of the Constitution's work was to enlist national power in the service of making states sovereign in practice for the first time by putting the overwhelming force of the national government behind the state governments as against those other contenders. 

I make no effort to convey Ablavsky's argument in full here, let alone to defend it.  That's what the article is for.  My point here is simply that people who want to understand this subject matter should read the article.  This work is something with which the field must grapple seriously.
Posted 9:24 PM by Richard Primus [link]

Can Congress Investigate Whether the President Has Complied with the Law?

Marty Lederman

Attention, first-year ConLaw students who haven't yet taken your final exams!:  You might want to consider how you'd answer that question.

No, really.  You're no doubt wondering:  Is that a trick question?  Well, until today it would have been.  But now . . .


The House Committee on Oversight and Reform recently asked Mazars USA LLP, one of Donald Trump's accountants, to provide documents and information relating to the firm’s preparation, review, and auditing of financial statements for Trump and his business entities.  Mazars told the Committee that it couldn't voluntarily provide the requested documents without a subpoena, and so on April 15th the Committee issued a subpoena to Mazars for the documents.

Trump sued Mazars and the Committee Chairman (who was soon replaced as a defendant by the Committee itself), seeking to enjoin the Committee from enforcing its subpoena to Mazars.

This case doesn't raise any issues of executive privilege or immunity from legislative process.  Trump's claim is entirely predicated, instead, on the argument that Congress lacks any legitimate investigative authority that could justify trying to obtain Trump's financial records from Mazars.

A couple of hours ago I attended a hearing that Judge Amit Mehta held on the merits of Trump v. House Committee on Oversight and Reform, No. 19-1136 (D.D.C.).  Judge Mehta began his questioning of Trump's lawyer, Will Consovoy, in precisely the right place:  He asked, one by one, whether Congress has the power to inquire into any or all of the four specific topics identified by Chairman Elijah Cummings in his memorandum to the Committee a month ago, explaining the basis for the request to Mazars.  Cummings wrote that:

The Committee has full authority [1] to investigate whether the President may have engaged in illegal conduct before and during his tenure in office, [2] to determine whether he has undisclosed conflicts of interest that may impair his ability to make impartial policy decisions, [3] to assess whether he is complying with the Emoluments Clauses of the Constitution, and [4] to review whether he has accurately reported his finances to the Office of Government Ethics and other federal entities.  The committee’s interest in these matters informs its review of multiple laws and legislative proposals under our jurisdiction, and to suggest otherwise is both inaccurate and contrary to the core mission of the committee to serve as an independent check on the Executive Branch.

Judge Mehta started from the end of this litany:  Does Congress have authority to inquire into whether a president "has accurately reported his finances to the Office of Government Ethics?," he asked.

No, said Consovoy.

What about to assess whether the President is violating the Emoluments Clauses of the Constitution?  After all, Judge Mehta noted, Article I, section 9 specifically provides that an officer can't accept any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State, "without the Consent of the Congress."

No go, said Consovoy, Congress can't inquire into the President's possible acceptance of any foreign emoluments, either.

OK, but what about trying to determine whether Trump has undisclosed conflicts of interest that may impair his ability to be impartial in the conduct of his office?

Same answer.

(At this point the die was cast:  Judge Mehta didn't get around to asking specifically about Congress's authority to investigate whether the President may have "engaged in illegal conduct before and during his tenure in office," because it wasn't hard to guess what Consovoy's response would have been.  Indeed, according to my notes Consovoy did say at one point that Congress lacks any power to assess whether the President is violating the law!)

When it was his turn to argue, Counsel for the House Doug Letter explained why Chairman Cummings was right that "[t]he committee’s interest in these matters informs its review of multiple laws and legislative proposals under our jurisdiction"--which ought to be enough, in and of itself, to justify the subpoena.

But even apart from such "legislative" functions, Judge Mehta wondered, what about Congress's "informing function"--the power of Congress, which the Supreme Court has recognized, "to inquire into and publicize corruption, maladministration or inefficiency in agencies of the Government"?   Watkins v. United States, 354 U.S. 178, 200 n.33 (1957).  After all, as the Court noted in Watkins, id., "[f]rom the earliest times in its history, the Congress has assiduously performed an 'informing function' of this nature."

Consovoy conceded, as he had to in light of Watkins, that Congress has the power to inquire into and publicize corruption, maladministration or inefficiency in agencies--which are, Consovoy explained, entities created by Congress itself.  However, Consovoy hastened to add, Congress does not enjoy a similar power to inquire into and publicize corruption, maladministration or inefficiency by the President.

Wait . . . WHAT?  Congress lacks authority to investigate and publicize possible wrongdoing--corruption or maladministration--by the President?  Did I hear that right?  But cf. Nixon v. Administrator of General Services, 433 U.S, 425, 452-53 (1977) (explaining that Congress enacted a law requiring preservation of a president's records and tapes in order to, inter alia, secure "the American people's ability to reconstruct and come to terms with their history").

Apparently I did, because Judge Mehta, too, was incredulous.  He asked Consovoy the obvious follow-up question:  Does this mean that Congress's investigations into Watergate and Whitewater [and, I might add, Iran/Contra; etc.] were unconstitutional?   Consovoy responded (if my notes are correct) that that would depend upon the basis for those investigations.  It was "straightforward," said Judge Mehta:  Congress was inquiring into possible violations of the law by the President.  In that case, Consovoy said, then yes, perhaps Congress did overstep its authority.  [That's my recollection of the substance of Consovoy's responses--not direct quotations.  If anyone who attended has a different account, please let me know.  Of course when the transcript becomes available I'll insert direct quotations.]

"Bold," "radical" and "unprecedented" don't begin to describe this line of argument.  I'm not sure what does.  Flabbergasting, I suppose.

I assume Consovoy--a very fine and accomplished advocate--will offer a less astounding, less categorical, answer to such questions when he next has an opportunity to brief them.  But for now . . . wow.

I should add that Consovoy has an alternative argument, too, one he tried to emphasize at every opportunity during the argument today--namely, that the congressional objectives articulated in Chairman Cummings's letter are not the actual reasons for the subpoena, and that the Committee is, instead, trying to "expose for the sake of exposure,” something that's not within Congress's authority, at least not when the exposure is of purely personal matters unrelated to the performance of a public official's functions.  Watkins, 354 U.S. at 200.  Although "[t]he public is, of entitled to be informed concerning the workings of its government," that "cannot be inflated into a general power to expose where the predominant result can only be an invasion of the private rights of individuals."  Id.  The problems with that argument, however, are not only that Congress obviously does have the legitimate and important objectives that the Chairman articulated, but also that courts are generally loath to look behind the reasons offered by a congressional committee.  See, e.g., id. (“[A] solution to our problem is not to be found in testing the motives of committee members for this purpose. Such is not our function.”).

As Judge Mehta's colloquy with Letter indicated, the case also raises questions about whether the particular subpoena at issue here is reasonably tailored to the Committee's legitimate inquiries, and whether the scope of the inquiries exceeds the Committee's jurisdiction.  I don't know remotely enough about the facts of the case and the Committee's jurisdiction to offer any informed views on those questions.

[UPDATE:  Charlie Savage's account of the hearing is, as usual, spot-on.]




Posted 6:21 PM by Marty Lederman [link]

On Democracy and Dysfunction

Stephen Griffin

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Posted 9:30 AM by Stephen Griffin [link]

A Half-Century of Republican Control of the Court . . .

Marty Lederman

. . . with no end in sight.

On this auspicious anniversary, re-upping my recent lament about the Vicious Entrenchment Cycle.
Posted 8:46 AM by Marty Lederman [link]

The United States Constitution is Not Dysfunctional

Guest Blogger

For the symposium on Sanford Levinson and Jack M. Balkin, Democracy and Dysfunction (University of Chicago Press, 2019).

Steven G. Calabresi

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Posted 9:00 AM by Guest Blogger [link]

Waiting for reform

Guest Blogger

For the symposium on Sanford Levinson and Jack M. Balkin, Democracy and Dysfunction (University of Chicago Press, 2019).


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Posted 9:30 AM by Guest Blogger [link]

Crisis or Rot? Dueling Metaphors of Constitutional Decline

Frank Pasquale

For the symposium on Sanford Levinson and Jack M. Balkin, Democracy and Dysfunction (University of Chicago Press, 2019).

The Balkin-Levinson dialogue is a model of academic conversation: two learned scholars of constitutional law, reasoning together on some of the deepest problems the topic poses. But it is also a debate, intended to shape ongoing public debates with the highest stakes. This debate pivots on dueling metaphors for contemporary crises of American constitutional legitimacy. Levinson, self-describedly “semi-apocalyptic” at one point, suggests the US is in or near a constitutional crisis. Balkin instead diagnoses “constitutional rot.”

In an earlier article, both Balkin and Levinson defined crisis as:

[A] potentially decisive turning point in the direction of the constitutional order, a moment at which the order threatens to break down, just as the body does in a medical crisis. It may lead back to a slightly altered status quo, that is, a crisis averted. The fever provoking a medical crisis breaks, and the patient returns to her prior condition little the worse for wear. On the other hand, the conclusion of a crisis may indeed be an important transformation in the forms and practices of power or, in the most extreme cases, the dissolution of the existing constitutional order and the creation of a new order in its place. The ultimate medical crisis, after all, is death, as demonstrated most spectacularly in our lifetime by the demise of the Union of Soviet Socialist Republics or the dissolution of Yugoslavia....

They go on to distinguish emergencies (“perceptions of urgency caused by facts on the ground or by the way that people perceive those facts”) from constitutional crises (“conflicts about the legitimate uses of power by persons or institutions”).

I just want to think a bit about how the diagnoses of crisis and rot work, by comparing them to other notable metaphors in social theory. What is the work that “rot” is doing here? What work could other metaphors do?
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Posted 9:30 AM by Frank Pasquale [link]

The Trump Era Has Pushed Scholars to the Limits of Our Understanding

Guest Blogger

For the symposium on Sanford Levinson and Jack M. Balkin, Democracy and Dysfunction (University of Chicago Press, 2019).

Julia Azari
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Posted 9:30 AM by Guest Blogger [link]

The Disjunction That Was Promised

Guest Blogger

For the symposium on Sanford Levinson and Jack M. Balkin, Democracy and Dysfunction (University of Chicago Press, 2019).

Corey Robin
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Posted 9:30 AM by Guest Blogger [link]

Another Rendezvous with Destiny

Gerard N. Magliocca

For the symposium on Sanford Levinson and Jack M. Balkin, Democracy and Dysfunction (University of Chicago Press, 2019).


Dear Jack and Sandy,

In the spirit of.your lively new book, which consists of a series of letters exchanged between you from 2015 to 2018, I decided to write my symposium contribution as a letter to each of you. I think you both downplay a key part of our dismal politics and each make an important point that explains why we are so stuck.

One impression from reading your letters is that only the United States is suffering from political paralysis and dysfunction. This is, of course, not true. There is Brexit, the Yellow Vest protests in France, the rise of the far right in Germany, and much more. Overall, we are witnessing a global decline in constitutional democracy from the high tide of the 1990s. (In retrospect, the failure of the Arab Spring in 2011 was a turning point that new gave to hope to autocrats everywhere.)

If the United States is just one of many dysfunctional democracies, then that suggests that Sandy's focus on the hard-wired provisions of our Constitution as the source of our problems is incorrect. Other national constitutions with very different provisions are faring no better. Indeed, the most flexible constitution in the world--Britain's--is now producing dysfunction on an almost daily basis. Perhaps each of these constitutions suffers from independent stupidities. I would be curious to know Sandy's view on which country has the best constitution. Whom exactly should we be emulating?

The global scope of the problem, though, also poses a problem for Jack's argument that our dysfunction is a symptom of the transition between party systems that will work itself out. How probable is it that this same transition is going on in Europe at the same time? One point in Jack's favor is that Thatcherism arose in Britain at about the same time that the Reagan Revolution came to the United States. Couldn't Brexit and President Trump be connected in a similar way? Perhaps. But  extending that trend to the rest of Europe (or to the world) is more of a stretch. Surely other countries are at different stages of their respective party systems and not all running on fumes.

That said, I think that Jack's diagnosis is largely correct. In part, that is because of my respect for Stephen Skowronek's work and my own scholarship on party system transitions in the United States. (In the 1820, the 1850s, and the 1890s.) They were all ugly in one way or another. Why should this one be different?

One reason it could be different, though, is Sandy's argument about some particular features of the Constitution that are prolonging the life of the Reagan coalition. The Electoral College is a major impediment to the rise of a new party system. It is quite possible that Donald Trump will be the first two-term president to never win the popular vote. Likewise, the Senate's rejection of one-person, one vote representation may (though not as clearly) give Republicans a significant structural advantage that is proving crucial with respect to judicial confirmations. I wonder, therefore, if Jack may be too optimistic that a new party system can overcome these obstacles in time to avert a more substantial crisis of legitimacy.

Your obedient servant,

Gerard

P.S. In this age every successful project becomes a saga. I hope this book is the first of a trilogy.

  

   
Posted 9:30 AM by Gerard N. Magliocca [link]

The Shrinking Constitution of Settlement

David Pozen

For the symposium on Sanford Levinson and Jack M. Balkin, Democracy and Dysfunction (University of Chicago Press, 2019).


In the afterword to the 2011 edition of Constitutional Faith and in his 2012 book Framed: America’s Fifty-One Constitutions and the Crisis of Governance, Sanford Levinson introduced a distinction between the “Constitution of Settlement” and the “Constitution of Conversation.” The Constitution of Settlement comprises those aspects of the Constitution that are clear, well established, and resistant to creative interpretation: for example, the two-senators-per-state rule. Precisely because they are seen as straightforward, these provisions tend to be taken for granted. The Constitution of Conversation, in contrast, comprises those aspects of the Constitution that are sufficiently open-textured as to invite ongoing debate and litigation: for example, the Equal Protection Clause. The distinction between the Constitution of Settlement and the Constitution of Conversation has been embraced by scholars from diverse disciplines and now features prominently in the celebrated constitutional law casebook that Levinson coauthors.

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Posted 9:30 AM by David Pozen [link]

Balkinization Symposium on Levinson and Balkin, Democracy and Dysfunction

JB

This week at Balkinization we are hosting a symposium on Sandy's and my new book, Democracy and Dysfunction (University of Chicago Press, 2019).

We have assembled a terrific group of commentators, including Julia Azari (Marquette), Steve Calabresi (Northwestern), Steve Griffin (Tulane), Gerard Magliocca (Indiana), Frank Pasquale (Maryland), Eric Posner (Chicago), David Pozen (Columbia), Jed Purdy (Columbia), and Corey Robin (Brooklyn College/CUNY).

At the conclusion, Sandy and I will respond to the commentators.
Posted 8:31 AM by JB [link]

Frank B. Cross, In Memoriam (1955-2019)

Stephen Griffin

Posted 2:21 PM by Stephen Griffin [link]

"Preserving" the Repubic of Statutes

Mark Tushnet

Posted 3:11 PM by Mark Tushnet [link]

"A Canticle for Liebowitz" and the Supreme Court

Mark Tushnet

Posted 3:10 PM by Mark Tushnet [link]

Partisan Gerrymanders, the Census Case, and the Court's Legitimacy

Neil Siegel

When the question is whether the Court will police extreme partisan gerrymanders, certain Justices--most notably Chief Justice John Roberts--voice concerns about threats to the Court's public legitimacy if it is seen to be intervening in partisan politics and squandering its diffuse public support, even though policing extreme partisan gerrymanders would not systematically favor one political party over the other.

When the question is whether the Court will permit the Trump Administration to add a citizenship question to the census that will obviously benefit the Republican Party and harm the Democratic Party and that obviously has the purpose of causing that effect, those same Justices--again, most notably the Chief Justice--do not voice concerns about threats to the Court's public legitimacy if it is seen to be intervening in partisan politics and squandering its diffuse public support, even though permitting the census question will systematically favor one political party over the other.

Instead, at least judging from the recent oral argument in the census case, the Court seems poised to defer to the Trump administration by a vote of 5 Republican appointees to 4 Democratic appointees. The Court appears poised to do so based on the so-obvious-it's-insulting pretext that the Administration's reasons for adding the citizenship question are to enable it to better enforce the Voting Rights Act. No matter that nonpartisan experts conclude that adding the citizenship question will not enhance VRA enforcement; that the Trump Administration has shown little interest in VRA enforcement; and that the Court's conservatives are otherwise increasingly hostile to the longstanding doctrine that courts should defer to reasonable judgments by administrative agencies.

It is the cases in which the future fortunes of the two main political parties are at issue that the Justices should be most scrupulous about appearing--and actually being--nonpartisan. It is in such cases that they should avoid leaving every impression of really, really wanting to come out in favor of the interests of the party that appointed them and asking themselves only how they can best negotiate the legal materials and arguments in order to find the path of least resistance. It is in such cases that we all learn whether their robes only appear black but are really red or blue--whether they are simply judges or whether they are really Trump or Obama judges.

Talk is cheap. See, e.g., Bush v. Gore (2000).
Posted 8:15 PM by Neil Siegel [link]

Census Sensibility: The narrowest, and simplest, way for the Court to resolve the census/citizenship case

Marty Lederman

The Supreme Court heard argument yesterday in No. 18-966, Department of Commerce v. New York, a case challenging Commerce Secretary Wilbur Ross's decision to add a citizenship question to the 2020 census form.  Ross explained that he added the question, notwithstanding the fact that it would depress the response rate on the census, in order to provide the Department of Justice with more complete data to aid its enforcement of Second 2 of the the Voting Rights Act of 1965 (even though, as everyone knows, the Trump DOJ is uninterested in enforcing Section 2).

The principal basis for the plaintiffs' challenge is that Ross's decision was arbitrary and capricious, in violation of Section 706(2)(A) of the Administrative Procedure Act.  Most of the briefing and the oral argument in the case has been consumed by questions regarding the reasonableness (or arbitrariness) of Ross's assessments on both "ends" of the cost/benefit balance he purported to strike:  (i) his conclusion that adding the citizenship question might not result in a substantial undercount of residents; and (ii) his conclusion that adding the citizenship question would provide DOJ with more and better data for VRA enforcement, even though the record evidence was virtually uncontradicted, and confirmed by the Census Bureau itself, that adding the question actually would, on the whole, impede the government's ability to accurately assess citizenship information for VRA purposes (see the ACLU Br. at 35-40 for the reasons why that's so).

In my view the plaintiffs, and the district court, have demonstrated why both of these conclusions were arbitrary and capricious.  But with one exception--an argument the government raises for the first time in its reply brief--those particular arguments, which are deeply dependent upon an extensive administrative record, are comprehensively addressed in many excellent briefs filed in the case, and don't need further exposition here.  (The exception is with regard to an argument the SG makes about the first point, i.e., the Secretary's assessment of the possible undercount if he includes a citizenship question on the census form:  In his Reply Brief (see p.14), the SG introduces the idea that the Census Bureau’s “nonresponse follow-up (NRFU) operations would substantially, even if not completely, mitigate any potential undercount as a result of [the anticipated] nonresponses”--in other words, that the increased nonresponse rate will not result in a substantial undercount.  The district court found that the evidence was to the contrary, however (see para. 235); and, more to the point, Secretary Ross did not rely upon any such “NRFU mitigation” theory as part of the basis for his decision.) 

The point I'd like to stress here is simpler, and more straightforward:

Even if the Justices are unsure about those two matters--or if some of them are inclined to think that Secretary Ross's assessments of those two empirical questions were reasonable--the Solicitor General's reply brief reveals why the Secretary's decision was nevertheless arbitrary and capricious.

As the SG notes, Ross's decision purported to be the result of a cost-benefit analysis--weighing the harm of an undercount against the purported benefits of providing DOJ with additional citizenship information.  Ross did not, however, limit himself to those two factors, standing alone; instead, he also considered a third factor--namely, that any undercount would be the result of unlawful conduct by individuals who choose not to submit their census information.  (It's a misdemeanor to refuse to answer questions on the census form.)

Indeed, the SG acknowledges that Ross's consideration of the unlawful nature of census respondents' conduct was decisive in how he struck the balance--it was the very reason he chose to subjugate the harm of the undercount to the alleged benefits of obtaining the citizenship data:  "[T]he Secretary expressly acknowledged the possibility of an undercount," the SG writes in his reply brief (p.10), "yet [he] determined that because it would be the result of unlawful action, it was outweighed by the benefits of providing the Department of Justice (DOJ) more complete and accurate census citizenship data to aid enforcement of the Voting Rights Act of 1965 (VRA)."  Accord id. at 15 ("Weighing these incommensurable factors requires a fundamentally normative policy judgment, and the Secretary explained that he gave greater weight to the benefits, in part because the costs were the result of unlawful conduct.").

By taking into consideration the fact that the undercount would be the result of "unlawful" action--and especially by going so far as to decisively discount the harm of the undercount for that reason--Ross acted arbitrarily and, especially, capriciously.  As New York Solicitor General Barbara Underwood stated in the argument:  "[The Secretary] said he could dismiss or discount any such effect because non-response is an illegal act.  But that is an irrational and impermissible factor to consider on this question."

Exactly so.

Imagine, for instance, that in making a cost-benefit assessment about a possible automotive safety regulation, the National Highway Traffic Safety Administration discounted any safety benefits that would redound to the benefit of people who drive a few miles over the speed limit.  [UPDATE:  I overlooked that Chief Justice Roberts actually alluded to this hypo early in the argument, when the Solicitor General was emphasizing the unlawfulness of nonresponse for a different part of his argument (Article III standing):  "I mean, it is true that if people go 60 miles an hour in a 55-mile-an-hour zone, that's unlawful," said Roberts.  "But you wouldn't say that they're not going to do that in forming public policy."]  Or imagine that the Food and Drug Administration decided to ignore the safety risks for a population that would foreseeably use a proposed drug unlawfully.  Absent any reason to believe Congress would have intended the agency to account for such factors, it'd be arbitrary and capricious for the agency in question to consider them--let alone to give decisive weight to them--in its assessment.  See Motor Vehicles Manufacturers Ass'n v. State Farm, 463 U.S. 29, 43 (1983) (“Normally, an agency rule would be arbitrary and capricious if the agency has relied on factors which Congress has not intended it to consider . . . ."); see also Train v. NRDC, 421 U.S. 60, 79 (1975) ("[T]he Agency is required to approve a state plan which provides for the timely attainment and subsequent maintenance of ambient air standards, and which also satisfies that section's other general requirements. The Act gives the Agency no authority to question the wisdom of a State's choices of emission limitations if they are part of a plan which satisfies the standards of [the statute]."). 

And there's no such indication of a contrary congressional intent here.  To the contrary, as Justice Kavanaugh affirmed toward the end of the argument, it's a "good first principles point" that the purpose of the census is enumeration.  Congress has not tasked the agency with counting only those residents who comply with the letter of the law--its job is to pursue an “actual Enumeration” of the "whole number of persons in each State,” U.S. Const. art. I, § 2, cl. 3, whether they are law-abiding or not, for the primary purpose of properly "apportioning political representation among the States.”  Wisconsin v. City of New York, 517 U.S. 1, 24 (1996).  See 13 U.S.C. § 141(b) (Secretary shall complete a "tabulation of total population by States"). 

There is nothing in the statute to suggest that the Secretary can, in effect, apply a moral judgment about nonresponders as a basis for discounting the need to include them in the enumeration.  (Moreover, the costs of such discounting would fall largely upon the States and their law-abiding residents who respond to the census.)

It follows, then, that when Secretary Ross chose to discount the harm of the undercount of persons who would choose not to respond to a census that includes a citizenship question--and certainly when he concluded that the undercount harm would be "outweighed by the benefits" of providing DOJ with citizenship data "because it would be the result of unlawful action"--that, in and of itself, rendered his decision "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law."

And that simple holding is all the Court needs to say in order to resolve this case.
Posted 7:27 PM by Marty Lederman [link]

Thoughts on Trump's Effort to Prevent Exposure of his Tax and Business Records

Mark Graber

Over at the ACS Blog
Posted 4:01 PM by Mark Graber [link]

Why Critics of Court-Packing Proposals Aren't Watching the Whole Board of Politics

Mark Tushnet

Posted 5:55 PM by Mark Tushnet [link]

The Meaning and Implications of the Mueller Report

Neil Siegel

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Posted 8:00 AM by Neil Siegel [link]

Frankfurter’s Conception of Judicial Legitimacy – and Ours

Guest Blogger

Or Bassok

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Posted 9:30 AM by Guest Blogger [link]