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In the Census Case, a Rebuke to Bad-Faith Government The Supreme Court Is Not Buying the Census Excuses
(about 7 hours later)
In a win for good government, the Supreme Court on Thursday refused to give its full imprimatur to the Trump administration’s irresponsible decision to add a citizenship question to the 2020 census form.In a win for good government, the Supreme Court on Thursday refused to give its full imprimatur to the Trump administration’s irresponsible decision to add a citizenship question to the 2020 census form.
The nuanced ruling, written by Chief Justice John Roberts, noted that Commerce Secretary Wilbur Ross’s decision to add the citizenship question “was reasonable and reasonably explained,” despite the Census Bureau’s misgivings about the move. As recently as last week, bureau experts warned that adding the question would result in a significant undercount of households with at least one noncitizen member. Mr. Ross “determined that reinstating a citizenship question was worth the risk of a potentially lower response rate,” Chief Justice Roberts wrote, because of “the long history of the citizenship question on the census.” Mr. Ross had argued that the question was needed to help the Justice Department better enforce the Voting Rights Act of 1965.The nuanced ruling, written by Chief Justice John Roberts, noted that Commerce Secretary Wilbur Ross’s decision to add the citizenship question “was reasonable and reasonably explained,” despite the Census Bureau’s misgivings about the move. As recently as last week, bureau experts warned that adding the question would result in a significant undercount of households with at least one noncitizen member. Mr. Ross “determined that reinstating a citizenship question was worth the risk of a potentially lower response rate,” Chief Justice Roberts wrote, because of “the long history of the citizenship question on the census.” Mr. Ross had argued that the question was needed to help the Justice Department better enforce the Voting Rights Act of 1965.
Later in the ruling, however, the chief justice wrote that the voting rights rationale offered by Mr. Ross depended on an “incongruent” explanation that wasn’t supported by proper evidence. “It is rare to review a record as extensive as the one before us when evaluating informal agency action — and it should be,” Chief Justice Roberts wrote. “But having done so for the sufficient reasons we have explained, we cannot ignore the disconnect between the decision made and the explanation given.”Later in the ruling, however, the chief justice wrote that the voting rights rationale offered by Mr. Ross depended on an “incongruent” explanation that wasn’t supported by proper evidence. “It is rare to review a record as extensive as the one before us when evaluating informal agency action — and it should be,” Chief Justice Roberts wrote. “But having done so for the sufficient reasons we have explained, we cannot ignore the disconnect between the decision made and the explanation given.”
He added, “Altogether, the evidence tells a story that does not match the explanation the Secretary gave for his decision.” That’s the Supreme Court’s way of saying Mr. Ross was making it up on the fly. He added, “Altogether, the evidence tells a story that does not match the explanation the secretary gave for his decision.” That’s the Supreme Court’s way of saying Mr. Ross was making it up on the fly.
Mr. Ross’s push for a citizenship question was unmoored from principles of administrative law — leading a federal judge in New York to call out the commerce secretary for violating “a veritable smorgasbord” of rules mandated by the Administrative Procedure Act.Mr. Ross’s push for a citizenship question was unmoored from principles of administrative law — leading a federal judge in New York to call out the commerce secretary for violating “a veritable smorgasbord” of rules mandated by the Administrative Procedure Act.
“Reasoned decisionmaking under the Administrative Procedure Act calls for an explanation for agency action,” Chief Justice Roberts explained on Thursday, partly reversing that judge’s decision on other grounds. “What was provided here was more of a distraction.”“Reasoned decisionmaking under the Administrative Procedure Act calls for an explanation for agency action,” Chief Justice Roberts explained on Thursday, partly reversing that judge’s decision on other grounds. “What was provided here was more of a distraction.”
In reaching this limited conclusion, which sends the case back to the Commerce Department, the justices at least temporarily safeguarded the integrity of the decennial census — a constitutional requirement that calls for an “actual enumeration” of everyone in the United States. From that mandate flows the composition of the House of Representatives for the next 10 years and critical federal funding for localities — key aspects of America’s character that shouldn’t depend on citizenship.In reaching this limited conclusion, which sends the case back to the Commerce Department, the justices at least temporarily safeguarded the integrity of the decennial census — a constitutional requirement that calls for an “actual enumeration” of everyone in the United States. From that mandate flows the composition of the House of Representatives for the next 10 years and critical federal funding for localities — key aspects of America’s character that shouldn’t depend on citizenship.
The Supreme Court has made it clear that Mr. Ross now needs to come up with more than a concocted rationale. In response, he could adopt the president’s line that the census would be “meaningless” without a citizenship question. That would be disastrous — but with a printing deadline looming for the census forms, he may not have time. The Supreme Court has made it clear that Mr. Ross now needs to come up with more than a concocted rationale. In response, he could adopt the president’s line that the census would be “meaningless” without a citizenship question. That would be disastrous — but with a printing deadline looming for the census forms, he may not have time to come up with a new rationale.
The Supreme Court’s compromise decision is a partial vindication of the work by lower courts, many of which are doing the hard work of preventing overreach by the Trump administration. In a comprehensive ruling issued in January, Judge Jesse Furman of Federal District Court ruled that Mr. Ross’s stated reason for the citizenship question was “pretextual” — that is, there was no truth to the rationale that the secretary needed the question to better enforce the Voting Rights Act. Judge Furman didn’t say what Mr. Ross’s actual rationale was; a judge in Maryland called it “a mystery.”The Supreme Court’s compromise decision is a partial vindication of the work by lower courts, many of which are doing the hard work of preventing overreach by the Trump administration. In a comprehensive ruling issued in January, Judge Jesse Furman of Federal District Court ruled that Mr. Ross’s stated reason for the citizenship question was “pretextual” — that is, there was no truth to the rationale that the secretary needed the question to better enforce the Voting Rights Act. Judge Furman didn’t say what Mr. Ross’s actual rationale was; a judge in Maryland called it “a mystery.”
The absence of a citizenship question would be a relief to states and local governments with large immigrant populations, like New York and Texas. Many people in those communities have an understandable fear of returning a census form and then facing dire consequences.The absence of a citizenship question would be a relief to states and local governments with large immigrant populations, like New York and Texas. Many people in those communities have an understandable fear of returning a census form and then facing dire consequences.
Thursday’s ruling, perhaps sensibly, sidestepped questions about discrimination and equal protection of the law. In May, some of the New York plaintiffs alerted the justices that newly discovered evidence laid bare Mr. Ross’s real motive for a citizenship question: to benefit Republicans and non-Hispanic whites. None of this was proved during a trial in Manhattan last year — partly because the Trump administration fought tooth and nail to prevent a deposition of Mr. Ross, an effort the Supreme Court agreed with last October.Thursday’s ruling, perhaps sensibly, sidestepped questions about discrimination and equal protection of the law. In May, some of the New York plaintiffs alerted the justices that newly discovered evidence laid bare Mr. Ross’s real motive for a citizenship question: to benefit Republicans and non-Hispanic whites. None of this was proved during a trial in Manhattan last year — partly because the Trump administration fought tooth and nail to prevent a deposition of Mr. Ross, an effort the Supreme Court agreed with last October.
The justices deserve credit for sending the case back for more thoughtful decision-making. After oral arguments in April, many court watchers expected that they would repeat the mistake of the court’s travel ban ruling and ignore the Trump administration’s evident bad faith. Fortunately, they were wiser this time around.The justices deserve credit for sending the case back for more thoughtful decision-making. After oral arguments in April, many court watchers expected that they would repeat the mistake of the court’s travel ban ruling and ignore the Trump administration’s evident bad faith. Fortunately, they were wiser this time around.
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