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Federal judge orders citizenship question removed from 2020 Census

Federal judge orders citizenship question removed from 2020 Census

Commerce Dept. didn’t dot all the i’s and cross all the t’s, and that could be a problem trying to get this ruling reversed.

In a long-awaited and predictable decision, Judge Jesse M. Furman in the Southern District of New York ruled Tuesday that Commerce Secretary Wilbur Ross violated federal administrative law when he decided to reinstate a citizenship question on the 2020 Census. Judge Furman, who was appointed by President Obama, barred the Census Bureau from inquiring about citizenship on census questionnaires anywhere in the country.

There’s a pretty good chance that this decision stands. 

The D.O.J. will almost certainly lose an appeal in the Second Circuit. When Judge Furman authorized unusual extra-record discovery, including a deposition of Secretary Ross himself, the Second Circuit backed the judge forcefully.

The Supreme Court may not come to the rescue either. The inescapable fact is that Secretary Ross failed to develop a clean administrative record to support a move that was destined to end up in litigation. The Census Bureau’s career scientists were hostile to adding the question, and so Ross’s justification needed to be as persuasive and airtight as possible. Obviously some judge, somewhere, would’ve blocked the question no matter what Ross did, but it would be easier to ask the Supreme Court to intervene if the judgment below were clearly meritless. In the larger scheme of the judiciary’s power struggle with the Trump administration, this is not among the most ludicrous rulings.

In a 277-page opinion, Judge Furman determined that Ross’s explanation for adding the question—that citizenship data would help the D.O.J. enforce the Voting Rights Act—was a pretext. Judge Furman said that Secretary Ross had been “aggressively pressing to add a citizenship question to the census before the idea of justifying it on the basis of VRA enforcement was first floated,” and that Ross’s behavior was “arbitrary and capricious” for a number of reasons.

He failed to consider several important aspects of the problem; alternately ignored, cherry-picked, or badly misconstrued the evidence in the record before him; acted irrationally both in light of that evidence and his own stated decisional criteria; and failed to justify significant departures from past policies and practices — a veritable smorgasbord of classic, clear-cut APA violations.

Under the Administrative Procedure Act, courts are supposed to vacate agency actions that are “arbitrary and capricious,” and so Judge Furman vacated Ross’s March 2018 memorandum adding the question. For a more complete list of the administrative rules Secretary Ross supposedly broke, see this Slate explainer, which is supportive of the decision but explains the issues well.

The plaintiffs in this lawsuit are a coalition of blue states led by New York, along with assorted immigration advocacy groups. They have alleged from the start that Ross’s true motive in asking about citizenship is to depress responses from immigrants and divert House seats and federal funds away from diverse states like New York and California. The plaintiffs wanted Judge Furman to go even further, and hold that Ross not only violated administrative law, but also acted with an unconstitutional discriminatory motive.

Judge Furman reluctantly rejected this constitutional challenge, conceding that “the extra-record discovery does not, as Plaintiffs’ all but admit, reveal discriminatory animus on the part of Secretary Ross himself.” As noted earlier though, the plaintiffs did try to depose Ross in order to prove this “animus.” Judge Furman eagerly obliged, but the Supreme Court stopped the deposition at the last minute.

In fact, the Supreme Court is already slated to hear arguments in February about whether Judge Furman erred in authorizing a deposition—among other extra-record discovery—to “probe the mental processes of [Secretary Ross].”

That case is now potentially moot because in Tuesday’s ruling, Furman expressly stated that his decision did not rely on any evidence outside the administrative record. So even if the Supreme Court were to throw out the extra-record discovery, his final decision would remain intact.

Ordinarily, the D.O.J. would appeal this final decision the Second Circuit, and then, if unsuccessful, petition for certiorari from the Supreme Court. But the Census Bureau says that it needs to start printing the questionnaires by June 2019, and there is now barely enough time for normal review by either the Second Circuit or Supreme Court, let alone by both. There are two possible tacks.

  1. Stay. The D.O.J. could appeal to the Second Circuit, and then ask the Supreme Court to stay Judge Furman’s ruling while the appeal is being considered. (The Second Circuit itself would probably deny any stay relief.) The Supreme Court typically grants a stay only when it intends to soon decide the case on the merits. Yet because the Census Bureau needs a final yes-or-no answer by this June, a stay from the Supreme Court would be dispositive in practice. By the time the Court would actually get around to hearing arguments in Fall 2019, the questionnaires would have already been printed and the matter would be moot. There is no oral argument on a stay application, and the Court seldom issues a written opinion when it grants one. The justices probably don’t want to decide a major case with such an abridged process. 
  2. CBJ. The D.O.J. could petition the Supreme Court for something called certiorari before judgment (CBJ), which essentially asks the justices to bypass the Second Circuit and quickly decide the merits themselves. If the D.O.J. wants to go this route, it has very little time: the Supreme Court is already close to finalizing its docket for the rest of the term. Should the Court agree to take up the case, the country would have a final answer by June 2019.

Most legal experts and commentators seem to think that the D.O.J. will take Option 2, especially since Solicitor General Noel Francisco has sought aggressive SCOTUS intervention in other, far less time-sensitive cases.

There’s another reason that CBJ would be sensible: Furman is not the only federal judge overseeing a lawsuit against the citizenship question. There are two similar challenges pending in federal court in Northern California and Maryland. A trial is already underway in the California case, and the judge there, Richard G. Seeborg, will soon issue his own opinion “striking down” the question. The Maryland judge, George J. Hazel, will follow suit some time thereafter. Both Seeborg and Hazel would almost certainly be upheld by their respective courts of appeals: the Ninth and Fourth Circuits.

(I say this with such certainty because Judges Seeborg and Hazel have, in earlier motions, already hinted that they agree with basically all of the plaintiffs’ arguments. The two are less likely to rule for the Government than Nancy Pelosi is to give Trump his wall money.) So even if the D.O.J. were to get lucky and prevail in the Second Circuit, its victory wouldn’t even settle the matter: the Ninth and Fourth Circuits could simply step in to veto the question.

It seems, then, like cert before judgment is the administration’s only shot.

There’s just one problem. The Supreme Court has lately been scarcer than the endangered gopher frog it ruled against last November. If this withdrawal is deliberate, the justices won’t want to decide a bitterly polarizing case unless they have to. My prediction, which is rather meaningless, is that if there aren’t five votes to reverse, the Court won’t take the case—no reason to rush a precedent-setting, headline-grabbing decision that doesn’t change the outcome. Furman’s well-crafted opinion can stand on its own. Conversely though, if the Court does take up the case, I’d take that as a sign that the Government will win.

As a final word, the controversy over the question seems overblown. It feels a bit like the union dues case from last term: the predictions were apocalyptic, but by most measurements the decision’s impact has, so far, been negligible.


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As this is restoration of a previously asked question, does the Act require the complete work-up when returning to a previously asked Census question? Can anything never be returned to what was previously done without acting as if it is a new issue?

    Milhouse in reply to Edward. | January 16, 2019 at 6:13 pm

    The APA says that administrative decisions must never be arbitrary or capricious. That means every change, in any direction, needs to be backed by a good reason. Removing the question in 1960 needed a good reason, and putting it back in 2020 needs a good reason.

      Edward in reply to Milhouse. | January 17, 2019 at 6:52 am

      Seems to me knowing how many residents are citizens and how many are not is a very good reason. But I am living in a world where the issue is looked at from a viewpoint of common sense as to whether it is arbitrary and capricious for the government to know that. A Federal Judge living and working in the SDNY doesn’t.

        Edward in reply to Edward. | January 17, 2019 at 7:01 am

        Further, with the APA enacted in 1946, if it wasn’t arbitrary and capricious to ask the question in 1950, why would it be arbitrary and capricious to restore the question in 2020? As I indicated, a Federal Judge living and working in the Metro NY City area (add CA or MD) isn’t likely to answer that question the same way someone living in Texas, Iowa or Montana would. So the APA depends on a totally subjective view for compliance. At one time we had a reasonably rational national view of such issues, those days are long gone and more’s the pity.

          Milhouse in reply to Edward. | January 17, 2019 at 11:10 am

          It’s the change that must not be arbitrary or capricious. When the question was changed in 1960 it was done for a reason that seemed good at the time. To change it back needs the same process. You can’t just arbitrarily undo a change that was once made, simply because you’re restoring an earlier state; you have to be able to justify why the earlier state was better, and why the change turns out not to have been good.

      This opinion is extremely flawed. It is frankly a judicial embarrassment, assuming the federal judiciary have any shame left. Yes, administrative decisions cannot be arbitrary or capricious but this is, in federal administrative law, an extremely deferential standard. A judge cannot substitute his discretion for the agency. It is actually a quite difficult argument to make. That, in essence, is what the judge improperly did here. He substituted his discretion for that of the Secretary. As egregiously in error that was, the decision is even more questionably on standing grounds. And more could be said regarding the procedural history.

previous as in like one census ago?

    Edward in reply to mailman. | January 16, 2019 at 9:41 am

    Not a simple answer. The “Long form” Census questionnaire (you know, the one which asked about toilets and was sent to randomly selected households) included a citizenship question, but there was no long form in 2010 because it was replaced by the American Community Survey in 2005, an annual questionnaire from the Census Bureau also sent randomly, which asked for citizenship information.

    The last time every household was asked where the residents were born and were they naturalized (if foreign born) was 1950.

    So actually some respondents were asked about citizenship by the Census Bureau every year since 2005 and some the 1970, 1980 and 2000 census , but all residents of the US were not asked since 1950. In one form or another the Census Bureau has used a citizenship question every census going back at least a century or longer, except the 1960 census, and every year since 2005.

      mailman in reply to Edward. | January 16, 2019 at 11:19 am

      So a limited census which asks about citizenship COULD be sent out to…oh…say…all known illegal immigrants and that would be ok because it would be a limited census? 🙂

        Milhouse in reply to mailman. | January 16, 2019 at 6:18 pm

        No, it would only be sent to random households. But even if it were sent to targeted households, what would be the point? They would just not reply, and since it is not the main form it would not affect reapportionment. So why do it? Pure curiosity?

I would put the question in and make the court enforce their decision.

The deep state made sure that the judge’s ruling was inevitable by their failure to adhere to the process.

UnCivilServant | January 16, 2019 at 9:40 am

Print it with the question included. The second circuit is not the venue for this case.

If the Islamists wanted the question asked it would be asked. Say what you want about their religion. Their tactics are clearly effective. With less than 2% of the population they get anything they want.

Making illegal aliens hesitant to answer the census is a FEATURE, not a bug. SCOTUS in Plyler v. Doe and Congress in the EMTALA act of 1986 basically promised illegal aliens free education and free medical care. The courts need to QUIT making being illegal here a higher status than being a citizen.

American CITIZENS DESERVE TO KNOW how many citizens there are. The constitution isn’t a suicide pact, I don’t give a damn how many judges want to turn it into that.

    You deserve only what your Democrat over lords say you deserve.

    Milhouse in reply to Close The Fed. | January 16, 2019 at 6:28 pm

    It is not a feature. The constitution requires an accurate count of the entire population, without exception. That includes aliens, whether here legally or not. States are entitled to representation for everyone who spent census night there, no matter who they are or how temporary their stay.

      I don’t believe this is entirely accurate. The Supreme Court has not required states to apportion on a total population basis.

Also, if the illegals actually answered the question honestly, all the sudden, we would have an “accurate” number of illegal aliens. And the invasion the federal government is supposed to protect the states from, would be proven, hands down.

We’ve been invaded. Lie about it all you want, it’s a fact, and we’re entitled to be furious about it and demand answers; the courts can kiss my ass.

    JusticeDelivered in reply to Close The Fed. | January 16, 2019 at 11:26 am

    Not just invaded, we are being overcome through both Hispanic and Muslims prolifically reproducing, and we are footing the bill for them to reproduce at high rates. This is really no different than Palestinians trying to overrun Israel through reproduction, of large numbers of brainwashed martyrs.

This should have been an easy ruling to make. There were two procedural issues which were ignored. On that basis, the judge could have ruled for striking the question, from the general census questionnaire in a 30 page decision. That it required 277 pages to justify this decision is incredible.

Now in the real world, the arguments of the plaintiffs are incredibly illustrative. The major argument is that a citizenship question would cause people to refuse to be counted as they are here illegally. This, in turn, would cause the plaintiff states to lose federal funding. What this admits is that these states have such a high number of illegal alien residents that if these illegal residents were not counted it would significantly impact federal funding to these states.

Sometimes a loss can get the message across just as well as a wiin.

So according to this judge it is ok to disenfranchise citizens by over allocating seats in the House of Representatives to jurisdictions that harbor and encourage illegal immigration.

    Milhouse in reply to Ghost Rider. | January 16, 2019 at 6:30 pm

    That is not over-allocation, that is the correct allocation, required by the constitution. There is no dispute about this.

      That my friend, is not accurate. The Supreme Court, as bad as it is, has never required allocation by total population. If you think that there is case that supports your proposition please provide a citation.

    randian in reply to Ghost Rider. | January 16, 2019 at 9:56 pm

    Assuming the illegal aliens aren’t themselves voting, hardly an ironclad assumption in a state like California, it actually over-enfranchises voters in heavy illegal-alien districts. They get more representatives in Congress than they deserve.

Civil rights shall be determined by citizen…. something else. Another ruling from the Twilight fringe (a.k.a “penumbra”) that previously deprecated “People”, “Person”, “Posterity”, “evolution”, “life”, “cruel and unusual”, “due process”, etc., and progressed “diversity” or color judgment, conflated sex and gender, elevated Pro-Choice: selective and opportunistic, etc.

So the Administrative Procedure Act authorizes the court to question the administrative motives. If not satisfied with the administration’s reasoning, the court can now run the administration itself.

We need no stinking elections, the court can do it for us.

The first step was representation without taxation. At the tipping point now almost 50% of U.S. Citizens pay no taxes. Why not extend all the goodies to those that aren’t even citizens?

Bucky Barkingham | January 16, 2019 at 12:25 pm

Creative incompetence on the part of the permanent bureaucracy under Sec. Ross in order to get the result they wanted.

buckeyeminuteman | January 16, 2019 at 12:31 pm

Census Bureau is under the Commerce Dept, which works for the executive branch. Print the damn cards with the questions you want and mail them out. Don’t really see how anybody besides the census bureau gets a say on the questions.

Banana republic cloaked in legal jargon. The judiciary is completely politicized and can’t be repaired.

How about this question: Are any members of your household NOT citizens? (Answer optional)
How many members of your household are NOT citizens (Answer optional)

I know how the Obama administration would handle this, if Illegal Aliens voted Republican.

First, the census would be printed and sent out with the question included. The claim would be made that the inclusion of the question was accidental, and that anybody who did not want to answer the question would not be prosecuted. Maybe. The courts would demand that the census question be marked out, the government would wait until the last minute, then put a notification on the second page of their website. The courts would persist, and a ‘clarification’ would be mailed to everybody who had received a census, filled with an entire page of bureaucratic babble in a font too small to read. By then, the census forms would be received, tabulated, and anybody who did not answer the question would get a precautionary visit by INS.

“They have alleged from the start that Ross’s true motive in asking about citizenship is to depress responses from immigrants and divert House seats and federal funds away from diverse states like New York and California.”

“Diverse” states like CA and NY. They should have just stated the “states with the highest alien populations” and been done with it.