On the morning of June 28, 2012, CNN and Fox News initially told viewers that the Supreme Court had struck down the Affordable Care Act’s individual mandate, not yet realizing that the court had saved it as a tax. Fox’s Shannon Bream declared that the mandate was “gone” and for six minutes a CNN chyron blared, “Individual Mandate Struck Down.”
The Supreme Court’s decision in Department of Commerce v. New York, the census case, was similarly easy to misread at first glance. Although it does keep the citizenship question off the census, at least for now, the majority opinion by Chief Justice John Roberts actually hands the government a clean win on all the substantive issues.
First, the court held that a citizenship question is constitutional, despite being unnecessary to the “enumeration.” Then it said that Wilbur Ross, the commerce secretary, complied with the federal law governing administration of the census. And then the court affirmed that Secretary Ross was allowed to overrule career scientists who advised him to gather citizenship data from administrative records instead of from the census. (The scientists feared that asking the question would cause many immigrants to avoid responding to the census.)
Why, then, did the government lose? The answer, quite simply, is that the court found that Secretary Ross had lied—or more gently, dissembled. Secretary Ross claimed the Justice Department told him that improved citizenship data would help the agency enforce the Voting Rights Act of 1965. It was because of that DOJ request—and only that request—that the question was added, Secretary Ross said. But the chief justice, together with the four-justice liberal bloc, determined that this VRA rationale was a pretext concocted after Ross had already made up his mind. The record, the chief said, showed that the VRA rationale was “contrived.”
The record shows that the Secretary began taking steps to reinstate a citizenship question about a week into his tenure, but it contains no hint that he was considering VRA enforcement in connection with that project…The Director initially attempted to elicit requests for citizenship data from the Department of Homeland Security and DOJ’s Executive Office for Immigration Review, neither of which is responsible for enforcing the VRA…it was not until the Secretary contacted the Attorney General directly that DOJ’s Civil Rights Division expressed interest in acquiring census-based citizenship data to better enforce the VRA.
Because Secretary Ross failed to “offer genuine justifications for [an] important decision[],” the majority affirmed the lower court’s judgment remanding the matter to the Commerce Department.
This question of sincerity was what divided the chief and the other conservatives. Justice Thomas agreed that Ross needed to offer a rational explanation for adding the question but, once satisfied that Ross had done so, he would have declined to evaluate whether his explanation was sincere. “Our only role in this case is to decide whether the Secretary complied with the law and gave a reasoned explanation for his decision,” Justice Thomas wrote, joined by Justices Gorsuch and Kavanaugh. “The Court correctly answers these questions in the affirmative. That ought to end our inquiry.”
But Chief Justice Roberts said that a deeper inquiry was needed because “accepting contrived reasons would defeat the purpose” of judicial review. “Unlike a typical case in which an agency may have both stated and unstated reasons for a decision,” the chief wrote, “here the VRA enforcement rationale—the sole stated reason—seems to have been contrived.” The chief justice sought to strike a balance between the judiciary’s need for honesty and the executive branch’s authority to act politically, and arrived at a compromise: an agency decision may be “influenced by political considerations or prompted by an Administration’s priorities,” but it must also explain itself in a way that is consistent with “what the record reveals about the agency’s priorities and decisionmaking process.” As Jennifer Nou, a University of Chicago law professor, puts it, “you have to tell us the truth, but not the whole truth.”
Secretary Ross’s explanation was a “distraction” that contained no truth, the court concluded.
Justice Alito said he feared that the majority’s standard would invite trial judges to search for pretexts in other cases. “If this case is taken as a model, then any one of the approximately 1,000 district court judges in this country, upon receiving information that a controversial agency decision might have been motivated by some unstated consideration, may order the questioning of Cabinet officers and other high-ranking Executive Branch officials, and the judge may then pass judgment on whether the decision was pretextual,” Justice Alito warned.
The court’s decision sends the case back to the Commerce Department, which, ordinarily, would mean that Secretary Ross gets a do-over: he can issue a new memorandum adding the question and re-litigate.
In this case though, there may not be enough time.
SCOTUS heard this case on an expedited basis because the government claimed that the census questionnaire needed to be finalized by July 1—this Monday. The plaintiffs, ironically, maintained throughout the litigation that, with additional resources, the citizenship question could be added as late as October 31. (Both sides will quickly change their tune, no doubt.)
If the true deadline is October 31, then there is perhaps enough time for Secretary Ross to present a new rationale. We will know soon whether he plans to do so. In a related case in Maryland, Judge George Hazel told the Justice Department yesterday that, if the government wants to avoid more discovery, it must inform him by Monday whether it intends to accept defeat on the question. Judge Hazel is currently probing documents from the hard drives of Dr. Thomas Hofeller, a now-deceased Republican redistricting expert, as part of an investigation into whether Secretary Ross acted with discriminatory intent when he added the question.
Rick Hasen, an election law professor at UC Irvine, says that he doesn’t think the government will back down:
But whatever the reason, the agency will likely act quickly to rehabilitate its pretexual ruling. The agency has said that printing had to begin in July, but plaintiffs challenging inclusion of the question have long claimed the real deadline is October. The government will surely concede now that October is doable. The agency could come back with new reasons, and the part of Roberts’ opinion joined by the conservatives which recognizes the broad agency discretion to include the question for non-pretextual reasons will be front and center.
“So we may see a rare September argument where these issues will be back before the Supreme Court,” Hasen ponders. President Trump said on Twitter that he would direct his lawyers to fight until the bitter end.
Cecilia Wang, a lawyer for the ACLU, said that the remand was “real,” and not just a formality.
Even if there is enough time, it’s not immediately obvious what might qualify as a valid, non-pretextual justification. In a 2016 case, Evenwel v. Abbott, SCOTUS left open the possibility that states could draw some districts on the basis of their citizen population instead of their total population—which is what every state currently uses. And in light of the Hofeller memos, it appears that the administration added the citizenship question so that states would have the data to make exactly that switch. Several states, including Texas, have indicated that they would request citizenship data if it were gathered. (Needless to say, redistricting on the basis of citizens instead of total population would benefit Republicans.)
Commerce could just come clean about all this, minus the part about helping Republicans. One would expect answering a state’s request for improved demographic information to pass the majority’s test, even if unstated partisan motivations lie underneath. On the other hand, the government needs a rationale that not only is “real” but is also consistent with applicable law, which obviously doesn’t contemplate modifying the census for partisan gain.
In the end, if the administration really wants this question on the census, it will have to return to the Supreme Court. There is zero chance that the government will win all of the lower court fights. And when and if it does return, the fate of the citizenship question will again be up to the court’s chief justice and now kingmaker.
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