The Census Goes to the Supreme Court

March 7, 2019

IRLI promotes presidential influence over agency action

WASHINGTON – The Immigration Reform Law Institute (IRLI) yesterday filed a crucial friend-of-the-court brief in the State of New York’s lawsuit seeking to vacate the decision of the Department of Commerce to restore a question about citizenship to the census in 2020. New York had complained that the question would cause an undercount of illegal aliens by making them afraid to fill out the census form, and this undercount would reduce both federal money flowing into New York and the number of New York’s congressional seats and electoral votes. A Manhattan federal district court agreed with the plaintiffs, and vacated the Department’s decision to add the question, finding that decision “arbitrary and capricious” under the Administrative Procedure Act (APA).

Because the census forms are due to be finalized in a few months, the Supreme Court accepted direct review of the district court’s decision, bypassing the Second Circuit Court of Appeals.

In its ruling, the district court found that Commerce Secretary Wilbur Ross had an “ulterior motive” for adding the citizenship question. What that motive was the court could not say. But the court was sure there was something motivating Secretary Ross other than the justification the agency gave, which was that adding the question would help the Justice Department enforce the Voting Rights Act. The district court did not – and could not – find that this unknown motive was improper. Instead, it announced this general rule: even if an agency articulates a reasonable basis for its action, and thus would otherwise comply with the APA, if the agency’s “real” motive for its action is something different, and this real motive is not known, its action is arbitrary and capricious.

The problem with this rule, IRLI pointed out in its brief in the Supreme Court, is that, sometimes, unknown motives for agency actions will simply be directives from the President of the United States. Because the district court’s rule would rob these directives of effect, it infringes on the President’s constitutional authority to control his subordinates. It also infringes on the right of the people to influence policy by voting in presidential elections, for heads of agencies only answer to the people if they answer to the President. As IRLI’s brief put it: “[T]he District Court’s rule would make agency heads unaccountable Platonic Guardians, sheltered from the winds of change that may come from the election of a new President.”

“The APA requires agencies to give a reasonable justification for their actions under the particular statute they are implementing,” explained Christopher Hajec, director of litigation of IRLI. “It does not require agencies to ignore the President. Such absurdities as the district court’s rule come up every time a President gets elected who might steer agencies in a direction activist courts don’t like.”

“No one doubts that when then-Secretary of Homeland Security Napolitano issued DACA, she did so because President Obama told her to,” said Dale L. Wilcox, executive director and general counsel of IRLI. “No one thought his role in the decision was controversial. But when the President is named Trump, somehow it’s different, and the courts come up with all these supposed rules of law to stop him from governing. We hope the Supreme Court will make short work of this latest one from the district court, and allow a citizenship question back on the census.”

The case is Dept. of Commerce v. State of New York, 18-966 (Supreme Court).

For additional information, contact: Brian Lonergan • 202-232-5590 • [email protected]