I’ll freely admit, I’m surprised. In April I predicted that the Trump administration would prevail in its effort to include a citizenship question on the 2020 census form. I based my conclusion on the combination of Congress’s broad delegation of authority to the executive branch to conduct the census in the “form and content” that the secretary of commerce determines, the historical norm of including citizenship questions, and the traditional leniency of so-called arbitrary and capricious review.
Against this legal background, I believed that — like with the travel-ban case — a chaotic process would matter less than the very broad discretion granted the president by existing law. I was wrong.
Today, Justice John Roberts joined the four more progressive judges to reach a legal conclusion (articulated in a complex series of interlocking and competing concurrences and dissents) that roughly goes as follows: Including a citizenship question in the census is not “substantively invalid.” However, the Administrative Procedure Act applies, and it is “meant to ensure that agencies offer genuine justifications for important decisions, reasons that can be scrutinized by courts and the interested public.” Since the administration’s explanation for its agency’s action was “incongruent with what the record reveals about the agency’s priorities and decisionmaking process,” the administration failed to meet its APA obligations.
The secretary of commerce had pointed to an assertion from the Department of Justice that the question would assist in voting-rights enforcement. To put it simply, the majority did not buy that explanation, finding that it was more of a rationalization: The secretary of commerce decided to include the question, went hunting for a reason, and eventually got the DOJ to help.
Quite frankly, this sounds about right. As the Court put it, “the evidence tells a story that does not match the explanation the Secretary gave for his decision.” This section of the opinion is instructive:
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11.29.2024