Old Email to Play Big Role in High Court Fight on Census

Liz OuYang, a coordinator for the New York Immigration Coalition, slams the government’s efforts to “run the clock down until the 2020 survey must go to print” at a Nov. 27, 2018, press conference following closing arguments in Manhattan Federal Court over the addition of a citizenship question to the census. (ADAM KLASFELD, Courthouse News Service)

WASHINGTON (CN) – Wilbur Ross had been secretary of commerce just two months when he emailed staffers about making a change to the census, one that could shape Democratic politics for 10 years to come. At Supreme Court oral arguments Tuesday, his missive is expected to figure prominently.

“I am mystified why nothing [has] been done in response to my months old request that we include the citizenship question,” Ross wrote on May 2, 2017.

The secretary fired off the email just after 10 a.m. and soon received a reply. “We will get that in place,” a staffer advised, adding that the effort would require the Commerce Department to work with the Justice Department.

For a federal judge in New York, the email was key to proving that Ross violated the public trust in pushing the citizenship question without following normal administrative procedures. U.S. District Judge Jesse Furman cited this email and other exchanges in ruling that the Justice Department’s request that the question be added to help it enforce the Voting Rights Act was not the real reason the question ended up on the census, despite the administration’s earlier claims.

The government is fighting now for a reversal, but time is limited for it to finalize the 2020 survey census, meaning that the case has taken the unusual trajectory of bypassing a federal circuit court.

U.S. Solicitor General Noel Francisco is mounting the defense for the Trump administration. His brief argues that, even if Ross had ulterior reasons for adding the citizenship question to the census, those reasons should not invalidate the action.

“Agency action does not fail APA review merely because, as is often the case, the agency decision-maker has unstated reasons for supporting a policy decision in addition to a stated reason that is both rational and supported by the record,” the brief states.

The administration also says courts cannot be in the business of second-guessing what is fundamentally a policy judgment left for the political branches of government to decide.

“At the margins, each additional question on the decennial census yields additional useful information in exchange for potentially lower response rates and concomitantly higher follow-up costs,” the administration’s brief states. “Deciding whether the benefits outweigh the costs is fundamentally a policy judgment — one that Secretary Ross expressly made here.”

Jonathan Entin, a professor at Case Western Reserve University School of Law, said one problem with this argument is that the Census Bureau expressly said adding the citizenship question would harm the count.

“This is one of those unusual situations where the secretary of commerce has rejected the views of the Census Bureau,” Entin said in an interview. “To me that’s a potential weakness for the government. It may not be fatal, but it certainly is an unusual posture because I can’t think of a situation, in the last 50 years anyway, where there’s been litigation about the census and the secretary of commerce has gone against the recommendations of the bureau.”     

Specifically, the Census Bureau’s top scientist, John Abowd, advised Ross that including it on the census would reduce response rates for households that include people who are not citizens by at least 5.1 percentage points, a total of about 630,000 households. The Census Bureau follows up after the census to ensure correct counts, but the large increase in nonresponding households would increase the cost of the census by at least $27.5 million.

Abowd’s team further told Ross he could accomplish the Justice Department’s goals with data the federal government already collects. In the end, the team gave Ross two alternative suggestions and expressly advised him not to add the question.

Abowd’s team later said even fewer households than they had initially estimated would respond, issuing a revised estimate of a 5.8 percentage point drop in response rates for households that include someone who is not a citizen.

Entin called this a stumbling block for the administration, even though Ross is not obligated to follow every suggestion fro the Census Bureau when crafting policy.

Ross’ decision to ignore the Census Bureau’s suggestions figures prominently into the briefs of various states and nonprofit groups that say Ross actively ignored evidence about how his change would harm the count and provide less accurate data. 

“The secretary’s attempts to disregard this evidence cannot withstand scrutiny,” New York’s brief in the case states. “He claimed that the analyses of the relative decline in response rates for noncitizens compared to citizens were ‘inconclusive,’ but that characterization cannot be squared with the plain language of every memorandum prepared by the Bureau during this time, all of which conclude — unequivocally — that the citizenship question would cause a measureable and disproportionate decline in noncitizen response rates.”

Ross also drew fire over his attempt to justify the change under the Justice Department’s Voting Rights Act, saying this should prevent the court from giving the administration the deference that agencies typically enjoy.

Thomas Wolf, counsel for the Brennan Center’s Democracy Program, said Ross’ actions before adding the citizenship question go against some of the most basic tenets of administrative law.

“We don’t know the ultimate reason why Secretary Ross wanted this question, but we know the reason that he gave was not the actual one that motivated his decision,” Wolf said. “And once we’re in that realm, we’re in a realm where agencies are acting basically lawlessly. It’s kind of a cloak and dagger scenario where the federal agencies are allowed to move in darkness with impunity.”

This is not the case’s first time before the justices, as the high court in October blocked the states and nonprofits from deposing Ross. The district court had granted the request to depose Ross and a Justice Department official earlier in the year.

Back before this case to trial last year, the Supreme Court sidelined an effort by the challengers to have Ross deposed.

Justices Neil Gorsuch and Clarence Thomas expressed frustration at the time that the trial court was set to consider evidence not in the administrative record. 

“Respectfully, I would take the next logical step and simply stay all extra-record discovery pending our review,” Gorsuch wrote. “When it comes to the likelihood of success, there’s no reason to distinguish between Secretary Ross’ deposition and those of other senior executive officials: each stems from the same doubtful bad faith ruling and each seeks to explore his motives.”

With Republican appointees now outnumbering those by Democrats at the high court, Entin said he expects Chief Justice John Roberts to end up on the side of the administration.

“Chief Justice Roberts is now the median justice, apparently, and so people are going to be looking at him,” Entin said. “But I expect that the chief is likely to sympathize with the government on this one, not only because of the partisan consideration, but because Chief Justice Roberts has generally been reasonably deferential to the government on contentious issues.”

Wolf said for opponents of the citizenship question could take heart in recent precedent where the court has appeared willing to prune agency power.

“If the Supreme Court lets Ross’ behavior here stand, it’s sending a strong signal to all agencies under any administration, whether it’s Democratic or a Republican administration that agency heads can act in unprincipled, secretive ways and get away with it,” Wolf said.

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