Wednesday, April 24, 2019

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.

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