[EL] Thoughts on New York v. Department of Commerce (Citizenship and Census case)

[Schultz, David]

Hi all:

I had a chance to read New York v. Department of Commerce where the court
rejected Secretary Ross’ decision to add a citizenship question to the 2020
Census.  The particularly strong part of the decision was the part
discussing the administrative law (Administrative Procedures Act plus
organic statutes governing the Census) deficiencies in Ross’s actions.

For those of you who do not have time to read the 277 decision, on pages
205-6 the Court summarizes the four administrative law deficiencies in the
decision.  Let me quote from the decision.

“First, the Court concludes that Secretary Ross ignored and violated a
clear statutory duty to rely on administrative records (rather than direct
inquiries) to the “maximum extent possible,” 13 U.S.C. § 6©, rendering his
decision “not in accordance with law,” 5 U.S.C. § 706(2)(A). Second, even
if that statute did not exist, Secretary Ross’s decision to add a
citizenship question rather than collect citizenship data through more
effective and less costly means was “not supported by the reasons [he]
adduce[d],” Service, 522 U.S. at 374, making it “arbitrary and capricious”
in violation of Section 706(A). Third, although a closer question, the
Court finds that Secretary Ross failed to satisfy the statutory requirement
that he report any plan to address the subject of citizenship to Congress
at least three years before the decennial census, in violation of Title 13,
United States Code, Section 141(f)(1). And fourth, the Court concludes that
Secretary Ross’s decision was pretextual — that the rationale he provided
for his decision was not his real rationale.”

Leading up to these conclusions the court offers an outstanding review of
the basic principles of administrative law and for those of us who teach in
it law school it is almost classic textbook exposition of issues of
congressional delegation, what it means to make decisions on the record,
when is a decision maker’s mind unalterably already made up, and what it
means for decisions to be pretextual and arbitrary and capricious.

What most struck me about the opinion were two major points.  First, and I
argued this from day one of the Trump administration, their lack of skill
and knowledge about the government (including the Constitution, the law,
and process and procedure), would eventually lead to many administrative
decisions being struck down in the courts.  This is an example of that. The
court describes in detail how Ross just ignored the law and thought he was
acting like the CEO of a company where he could do whatever he wanted.
He ignored the law, reporting requirements, and also sought to cover up
decisions.

The second major point was how DOJ attorneys effectively conceded much of
the case to the plaintiffs.  By that, in so many cases DOJ attorneys had
little or no arguments to support Ross.  The judge was simply devastating
in detailing Ross’ willful disobedience of the law and the inability of the
attorneys to defend his actions.

Final note: In arguing that Ross’ decision to add citizenship to the Census
the court indicated that reasons offered by him were pretextual.  However,
the court did not go so far as argue that the real reason was race.  This
was a smart move by the judge that probably helps insulate this decision on
appeal.
-- 
David Schultz, Professor
Hamline University
Department of Political Science
1536 Hewitt Ave
MS B 1805
St. Paul, Minnesota 55104
651.523.2858 (voice)
651.523.3170 (fax)
http://davidschultz.efoliomn.com/
http://works.bepress.com/david_schultz/
http://schultzstake.blogspot.com/
Twitter:  @ProfDSchultz
My latest book:  Presidential Swing States:  Why Only Ten Matter
https://rowman.com/ISBN/9780739195246/Presidential-Swing-States-Why-Only-Ten-Matter
FacultyRow SuperProfessor, 2012, 2013, 2014
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