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.


Donations tax deductible
to the full extent allowed by law.