Sunday, July 07, 2019

Census Citizenship Question Re-do? Part I: Moment of Truth (and Integrity) for the Office of the Solicitor General

Marty Lederman

On Thursday, June 27, the Supreme Court held that Commerce Secretary Wilbur Ross's March 2018 order, directing the Census Bureau to add a citizenship question to the 2020 Census questionnaire, "rested on a pretextual basis," i.e., that it "cannot be adequately explained in terms" of the "sole stated reason" Ross offered--a purported request by the Department of Justice "for improved citizenship data to better enforce [Section 2 of the Voting Rights Act]."  "Our review is deferential," wrote Chief Justice Roberts, "but we are 'not required to exhibit a naiveté from which ordinary citizens are free.'" (quoting Judge Henry Friendly).  For a court to "[a]ccept[] contrived reasons" for an agency action, he explained, would "defeat the purpose of the enterprise" of administrative law and render judicial review no "more than an empty ritual."

The Court therefore affirmed Judge Jesse Furman's "remand" of the Ross directive back to the Secretary.

There's been some confusion about what it means to "remand" a directive back to the agency in this context.  Here, because Judge Furman also vacated the Secretary's directive (a vacatur the Supreme Court did not reverse), his additional "remand" order that the Supreme Court affirmed did not have much, if any, legal effect, as Judge Furman himself explained:
[I]t is not entirely clear what it would mean to refrain from remand in the circumstances of these cases.  By analogy to appellate litigation, a remand is arguably necessary to restore an agency's “jurisdiction” where an adjudicatory decision or formal rulemaking was under review.  Here, by contrast, Secretary Ross's “jurisdiction” over the 2020 census has presumably continued unabated throughout this litigation, and his ongoing obligation to execute his statutory duties with respect to the census will survive whatever remedy the Court orders.  Put differently, it is hard to see how the Court's decision whether or not to “remand” in these cases could affect the Secretary's ongoing statutory authority over the form and content of the census questionnaire.  Having said all that, and if only to avoid confusion, the Court will “remand” the case to the extent that such an order is necessary to restore the Secretary's jurisdiction over the census questionnaire.  It goes without saying that such remand is limited to further action not inconsistent with the Court's Orders.
In other words, the remand simply confirmed that "Secretary Ross retains the same statutory authority over the census that he had before the Court’s decision today, provided (as always) that he exercises it consistent with the APA and applicable law (and the Court’s order)."

That's how the government is (appropriately) interpreting the vacatur and remand, too (especially when read alongside Judge Furman's preliminary injunction against adding a citizenship question).  As DOJ lawyers told the Judge last Wednesday:  "Defendants can confirm that they are taking no action in contravention of the injunction of this Court, which vacated the Secretary’s March 2018 decision to place a citizenship question on the 2020 decennial census, and which was affirmed in relevant part by the Supreme Court and remains in place to protect the interests of Plaintiffs in this matter."  Similarly, they wrote to Judge Hazel in Maryland on Friday that "the permanent injunction precluding the Commerce Department from 'implementing Secretary Ross’s March 26, 2018 decision and from adding a citizenship question to the 2020 decennial census,' remains in place."  (The way one DOJ attorney put the point to Judge Hazel on Wednesday is that Ross's "basis for the citizenship question is firmly enjoined, vacated, and does not exist.")

And so that ought to be the end of the matter, right?  Because even though Judge Furman and the Supreme Court nominally remanded the directive back to Secretary Ross, where he was free, at least in theory, to begin anew (i.e., to issue a new directive with a new rationale), the Department of Justice--including the Solicitor General--has repeatedly insisted to courts that last Sunday, June 30, was a hard deadline for finalizing the form of the census questionnaire.  Indeed, the Department of Justice represented to the courts that the form of the questionnaire could not be changed after June without an additional appropriation of funds--something that's obviously not going to happen.  (More on this June deadline issue below.)

Not only didn't Secretary Ross promulgate any new directive by June 30, but there was never any chance the Census Bureau might add the citizenship question to the census form by then--or any time soon thereafter.  As DOJ wrote to Judge Hazel on Friday, "any new decision by the Department of Commerce on remand providing a new rationale for reinstating a citizenship question on the census will constitute a new final agency action," and plaintiffs would be "fully entitled to challenge that decision at that time," followed by extensive discovery, perhaps trials, briefing, and several layers of judicial review.

And so, not surprisingly, by Tuesday, July 2, it appeared that the Commerce and Justice Departments had given up the ghost:  They'd determined that there was no way for Secretary Ross to promulgate another, new directive, supported by a new, supportable, not-contrived rationale--or, at the very least, that he couldn't do so now that the hard deadline had come and gone.  And DOJ officials reportedly "told the White House that the case was a dead-end and that pursuing it would be a waste of time."  Thus, late Tuesday afternoon, Department of Justice attorneys "confirmed" to counsel for the challenging parties in the New York case "that the decision has been made to print the 2020 Decennial Census questionnaire without a citizenship question, and that the printer has been instructed to begin the printing process.”  Later that evening, another DOJ lawyer told Judge Hazel, in the District of Maryland, the same thing, and confirmed that the printer is now at work creating the questionnaire sans citizenship question.

* * * *

But then suddenly, late Wednesday afternoon, July 3, Jody Hunt, the head of the DOJ Civil Division, informed Judge Hazel that everything had changed:  "We at the Department of Justice have been instructed," we explained, "to examine whether there is a path forward, consistent with the Supreme Court's decision, that would allow us to include the citizenship question on the census."  Notwithstanding Hunt's strange use of the passive voice to obscure the identity of the official doing the "instructing," it was obvious to everyone what had happened:  The President instructed DOJ [and, as it turns out, the Commerce Department] to find a path to allowing the Census Bureau to use the citizenship question, if at all possible.

This was news to the lead DOJ Federal Programs lawyer in the case:  "The tweet this morning was the first I had heard of the President's position on this issue," he told Judge Hazel.  "I do not have a deeper understanding of what that means at this juncture other than what the President has tweeted."  Later that day, however, that lawyer confirmed Hunt's account in a letter to Judge Furman:
The Departments of Justice and Commerce have now been asked to reevaluate all available options following the Supreme Court’s decision and whether the Supreme Court’s decision would allow for a new decision to include the citizenship question on the 2020 Decennial Census.  The agencies are currently performing the analysis requested, and, if they determine that the Supreme Court’s decision does allow any path for including such a decision, DOJ may file a motion with the Supreme Court seeking further procedural guidance for expediting litigation on remand.
* * * *

Secretary Ross would have to overcome two huge obstacles in order to do what the President wishes.

First, in order to issue a new directive to the Bureau to add a citizenship question on the census questionnaire--a "new final agency action," as DOJ explained--Ross would have to rely upon a new rationale, and that rationale would have to be one (i) that neither the Constitution nor any statute prohibits; (ii) that is not "contrived," or pretextual, i.e., that reflects Ross's actual reason for acting; and (iii) that is (in the Supreme Court's words) "reasonable and reasonably explained," or "within the range of reasonable options," in light of the significant risk of a substantial diminution in census response rates that such a question will cause, and the attendant inaccuracy in the "tabulation of total population by States" that federal law requires the Department to make.

That's a very tall order, at best--something I'll discuss in a follow-up post.

Second, even if Ross were able to come up with a lawful rationale, and even his new directive could withstand the weeks and months of judicial scrutiny that would inevitably follow, there remains that pesky June 30 deadline.  To put it bluntly:  It's too late, even if they really did try to make it, because it's now impossible for the Census Bureau to change the content of the questionnaire that's already being printed.

Or is it?

The DOJ attorneys' representations late last week that they and Commerce are "reevaluating all available options" suggests that perhaps they do not actually believe that the deadline for changes to the questionnaire has passed.

This prompted the NYIC/ACLU attorneys to file an extraordinary motion to Judge Furman late Friday, asking him to make permanent his injunction against addition of a citizenship question, based upon the numerous representations DOJ has previously made about the June 30 deadline.

The plaintiffs' "motion to amend" cites chapter and verse--many chapters and many verses--of the ways in which DOJ has insisted to Judge Furman and to the Supreme Court (among others) that June 30 was a hard-and-fast deadline.  The motion also explains that the courts and the parties relied upon those representations.  DOJ's assertion of a June deadline was the reason that Judge Furman himself, for instance, expedited discovery, trial, and briefing schedules.  "[T]ime is of the essence," he wrote, "because the Census Bureau needs to finalize the 2020 questionnaire by June of this year.”  See also id. at page 191.  The Solicitor General also invoked the June 30 deadline as the basis for his extraordinary request for the Supreme Court to grant certiorari "before judgment" (i.e., to take the case before the court of appeals could consider it).  "[T]he Census Bureau must finalize the census forms by the end of June 2019 to print them on time for the 2020 decennial census,” the SG explained to the Court.  Accord id. at 13–14 (“the government must finalize the decennial census questionnaire for printing by the end of June 2019”), id. at 16 (referring to “the June 2019 deadline for finalizing the census form”).  Again in his motion for an expedited briefing and oral argument schedule, the SG told the Court that "the questions presented must be resolved before the end of June 2019, so that the decennial census questionnaires can be printed on time for the 2020 census" (emphasis added).  The June 30 deadline was also an essential part of the grounds on which the government successfully urged the Supreme Court to add the Enumeration Clause question to the case well after cert. had been granted.

If you want further details, go read the plaintiffs' motion.

For present purposes, however, I'd like to focus on just one, very recent and especially significant example of the government's invocation of the June 30 deadline.

Strangely, most of DOJ's representations to the courts about the June deadline have not explained what the source of the deadline was.  Is it a legally imposed deadline?  A budgetary constraint?  A matter of the terms of the contract with the printer (and, if so, could the contract be amended)? Would it be technologically infeasible to complete the printing for timely distribution if the printing started later?

There is, however, one important exception--a recent filing in which the Solicitor General indicated to the Supreme Court that any changes to the questionnaire after June 30 would require further congressional appropriations.

On June 10, the NYIC/ACLU plaintiffs made a motion to the Supreme Court to partially remand the case back to Judge Furman for further fact-finding in the wake of newly discovered information concerning Republican political strategist Thomas Hofeller.  In that motion, plaintiffs argued that such a remand would not undermine the Bureau of the Census's ability to distribute the census in a timely manner because the census questionnaire didn't have to be finalized until October 31.  The basis for this assertion was this trial testimony by Bureau of Census official John Abowd:
Q. [by Dale Ho, counsel for plaintiffs]:  Dr. Abowd, the 2020 census questionnaire will be finalized by June of 2019, correct? 
A. That’s when the final artwork is due at the printers, yes. 
Q. With existing resources the Census Bureau can lock down the content of the census questionnaire by June 30, 2019, correct? 
A. That’s correct. 
Q. Under the current budget, if there are changes to the paper questionnaire after June of 2019, that would impair the Census Bureau’s ability to timely administer the 2020 census, correct?
A. That is correct. 
Q. With exceptional resources, the final date for locking down the content of the census questionnaire is October 31, 2019, correct? 
A. That is correct. 
Q. Changes after October 31, 2019, would require major redesigns and might require congressional authorization, in your understanding, right, Dr. Abowd? 
A. That is correct.
The plaintiffs construed this testimony (see p.2 of their motion) to mean that although the cost of the printing would increase after June 30, the Bureau could use additional, already appropriated funds to pay for the extra expenses.

On June 20, mere days before the Court was expected to decide the case, the Solicitor General filed an opposition to plaintiffs' motion for a fact-finding remand.  In that filing the SG represented to the Court that there was no time for such a remand.  In particular, he argued that the plaintiffs' contention that the census forms could be finalized "without additional congressional appropriations" as late as October 31 "is unsupported by the record," and that "[t]he district court thus correctly found that for all practical purposes, 'the Census Bureau needs to finalize the 2020 questionnaire by June of this year.'” 

In support of these assertions, the SG cited to John Abowd's deposition, in which he attested, immediately after consulting with the Bureau's Acting Director regarding the timing question, that "[w]ith existing resources, June 30th of 2019 is the content lock-down date."

The SG thus represented to the Court that in order to change the form after June 30, "existing resources" were inadequate, and that the record did not support the view that it could be done without a further congressional appropriation.

* * * * 

Judge Furman has given DOJ until this Friday afternoon to respond to the plaintiffs' motion for a permanent injunction--a motion predicated entirely on DOJ's repeated representations that June 30 was the last possible date for a change in the form of the census questionnaire.

Unless I'm missing something, there are two basic possibilities for DOJ's response:  Either there are appropriated funds available for a change in the questionnaire between now and October 31--or there aren't.

1.  There are no funds.  DOJ might reaffirm the SG's representation that there are no appropriated funds available to make any changes in the census form now that the June 30 deadline has passed and the forms are being printed without a citizenship question.  True, it's always theoretically possible Congress could enact a new appropriation that could be used to add a citizenship question.  But of course everyone knows that the House will never approve such funds.  So that'd be the end of the controversy, whether or not Judge Furman issues a permanent injunction.

2.  Oops, turns out there are funds, after all.  Alternatively, DOJ could tell Judge Furman that the SG misrepresented the facts to the Supreme Court.  In order to file that sort of brief, presumably DOJ would not simply say "We lied," or "Our fingers were crossed," or "You must have misunderstood us," or "Tricked you!:  We merely said that plaintiffs' view that there were funds was 'unsupported by the record'; we didn't say it was wrong!"  Instead, it would have to say something such as:
Yes, as we explained to the Court, three weeks ago we thought a new appropriations enactment would be necessary, but guess what?:  We misunderstood what Mr. Abowd meant when he attested under oath that "[w]ith existing resources, June 30th of 2019 is the content lock-down date."  Silly us:  We thought by "existing resources" he meant "resources that exist."  We can now represent, after further inquiries with the Census Bureau, that (who knew?!) there are available appropriations that the Bureau has authority to "repurpose" to pay for the additional expenses the Bureau would incur if it were to jettison the current print-job and order a new one before October 31.
I realize that by now nothing should surprise me, but I would be shocked if DOJ filed a brief such as this, because it would have a devastating impact on the credibility of the Office of the Solicitor General with the Supreme Court.

As Sam Bagenstos emphasized a few days ago, the SG's briefs and oral arguments frequently make factual representations--often without any citations to underlying documents--about what the government is doing, can do, etc.  And when the SG does so, it's typically based not simply upon an interpretation by the SG of some official's deposition testimony:  As anyone who's worked with OSG knows, the Office exhaustively runs the question to the ground within the relevant agencies, until it's certain it can substantiate, and thus stand behind, the representations it makes to the Court.  That explains why, as Sam wrote, "the Court absolutely trusts and depends upon OSG to play it straight on such matters" and to offer accurate information.

And that's exactly what the Court did here, both when it granted the government's highly unusual petition for cert. before judgment, and when it decided the case:  Chief Justice Roberts himself noted in his opinion that "the census questionnaire need[s] to be finalized for printing by the end of June 2019."  The Chief didn't need to defend that proposition (even though the plaintiffs disputed it), nor did he feel the need to cite any authority:  It was enough that the SG said so--a representation the Chief Justice could comfortably take to the bank.

That's why if DOJ now were to say, in effect, "Oh, we forgot to mention [or: "It turns out"] that the real deadline is October 31; very sorry for the oversight/misunderstanding," such a bait-and-switch would (or at least should) significantly undermine the credibility the SG has cultivated with the Court over a period of decades.

Which is why, until a few minutes ago, I thought for sure they'd do the right thing on Friday and confirm that June 30 was, indeed, "the content lock-down date," just as they've been representing to the courts, counsel and the public for many months.

Just now, however, DOJ announced that tomorrow (Monday) it is "shifting" the census cases "to a new team of Civil Division lawyers going forward."  That's deeply concerning.  It almost certainly means that some or all of the lawyers involved in the cases are unwilling to contribute to or sign briefs that will contradict the representations DOJ, and the SG, have made to the courts.  (The Post story reports that the Consumer Protection Branch--which has no obvious connection to the issues in the case--will be involved, which suggests that perhaps the entire Federal Programs Branch is refusing to have anything to do with it any longer.  That would be, to say the least, a troubling portent--perhaps a harbinger of indefensible arguments to come.  Why Consumer Protection?  Watch for the name David Morrell, recently appointed to be Deputy Assistant AAG in charge of that Branch.  He clerked for Edith Jones and Clarence Thomas, then worked at Jones Day and in the White House Counsel's Office.  No surprise Barr would tap him to be in charge.  The interesting question is whether any career lawyers agree to participate and, as I discuss in this post, whether OSG is on-board, despite its earlier representations regarding the June 30 deadline.)

[UPDATE, July 8:  In an interview with the Associated Press, Attorney General Barr said the Trump administration will take some action soon that will allow the Census Bureau to ask the citizenship question:  He said he believes there's “an opportunity potentially to cure the lack of clarity that was the problem and we might as well take a shot at doing that.”]

* * * *

If DOJ on Friday does an about-face and now represents that October 31 is the "real" deadline, the  Department of Commerce still won't be able to include a citizenship question on the census questionnaire unless and until Secretary Ross issues a new directive, based upon a new legal--and non-contrived--rationale.  Reportedly, "[c]ensus officials and lawyers at the Justice and Commerce departments scrapped holiday plans and spent their Independence Day seeking new legal rationales for a citizenship question." 

In my next post, I'll examine the possible rationales that the Secretary might invoke.

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