[EL] John Roberts and the Census Decision

[Adam Bonin]

This complements something I had drafted for the list on decision day and
then decided to sit on, but now (maybe) completes the story, and it regards
what, exactly, was the remand order that the Court affirmed.  With some
edits, then:

The remand to the district court was solely to confirm Commerce's
continuing jurisdiction over the Census. Rather than issuing a vacatur
*without* remand, as Plaintiffs had requested, he wrote on p. 270: "Having
said all that, and if only to avoid confusion, the Court will 'remand' the
case to the extent that such an order is necessary to restore the
Secretary’s jurisdiction over the census questionnaire. It goes without
saying that such remand is limited to further action not inconsistent with
the Court’s Orders."
https://www.brennancenter.org/sites/default/files/legal-work/2019-01-15-574-Findings%20Of%20Fact.pdf

Judge Furman had already recognized that Commerce had never suggested other
reasons beyond its VRA justification and there was no likelihood of a valid
purpose now surfacing (p 267), and a five-Justice majority of the Supreme
Court has determined that the proffered justification was  "contrived" and
"pretextual."  The district court further entered an injunction -- which I
don't believe today's decision disturbed -- as follows (matching what Prof.
Pildes said as to the necessary future process to rehabilitate the
question):

In particular, the Court enjoins Defendants from adding a citizenship
question to the 2020 census questionnaire based on Secretary Ross’s March
26, 2018 memorandum or based on any reasoning that is substantially similar
to the reasoning contained in that memorandum. More specifically,
Defendants are enjoined from adding a citizenship question to the 2020
census questionnaire unless the Secretary: exhausts the maximum possible
usefulness of administrative records to acquire adequate information
“consistent with the kind, timeliness, quality and scope of the statistics
required,” 13 U.S.C. § 6(c) (emphasis added); submits a report to the
relevant congressional committees “containing [his] determination of the .
. . questions as proposed to be modified,” 13 U.S.C. § 141(f)(3); considers
all relevant evidence and aspects of the problem; and provides, in support
of the decision, his real rationale. To be clear, the Court does not enjoin
Defendants from continuing to study whether and how to collect data on
citizenship as part of the census (or any other Census Bureau instrument).
Nor does the Court enjoin Defendants from conducting tests with respect to
the addition of a citizenship question or otherwise taking appropriate
steps to prepare for the 2020 census — recognizing that, if a higher court
disagrees with this Court’s ruling, the citizenship question may well end
up on the questionnaire and that Defendants should not be precluded from
preparing accordingly."

The purpose of said injunction, as Judge Furman explained in the paragraph
immediately preceding, was because "in the absence of an injunction,
Secretary Ross could theoretically reinstate his decision by simply
re-issuing his memorandum under a new date or by changing the memorandum in
some immaterial way."

The one part of the Court's opinion which threw me, however, is that the
Chief Justice's sentence affirming that remand ("In these unusual
circumstances, the District Court was warranted in remanding to the agency,
and we affirm that disposition") was followed by a citation to  Florida
Power & Light Co. v. Lorion, 470 US 729, 744 (1985), where you'll find this
language: "If the record before the agency does not support the agency
action, if the agency has not considered all relevant factors, or if the
reviewing court simply cannot evaluate the challenged agency action on the
basis of the record before it, the proper course, except in rare
circumstances, is to remand to the agency for additional investigation or
explanation."  So I wasn't sure if he meant "yes, you can try again" or
that "we affirm that disposition" meant exactly as Judge Furman had
indicated: no, you can't.  Now, as Joey Tribbiani famously said on
Friends, it's
a moo point.  <https://www.youtube.com/watch?v=pmOI5DRvxi0>

Adam C. Bonin
The Law Office of Adam C. Bonin
121 S. Broad Street, Suite 400
Philadelphia, PA  19107

(267) 242-5014 (c)
(215) 701-2321 (f)
adam at boninlaw.com
http://www.boninlaw.com


On Wed, Jul 3, 2019 at 11:35 AM Pildes, Rick <rick.pildes at nyu.edu> wrote:

> John Roberts fully understood, I believe, that his decision in the Census
> case would almost certainly be the end of the line for the citizenship
> question.
>
>
>
> The Solicitor General represented to the Supreme Court -- at least six
> times -- that for all practical purposes the forms had to be finalized by
> the end of June (Hansi Lo Wang collects these representations here
> <https://twitter.com/hansilowang?lang=en>).  These representations
> undoubtedly reflected inter-agency discussions between the Solicitor
> General’s Office, the Census Bureau and the Commerce Department, informed
> by discussions with the only printer capable of doing the job.  For the SG
> to make these representations, repeatedly, is a serious matter.  In
> addition, the District Court had also found, as a factual matter, the same
> thing regarding the date that the SG represented to the Supreme Court.
>
>
>
> Given all this, the Court would have acted on the understanding that the
> end of June was it.  And even if Roberts thought there might be a little
> play in the joints on that, any rushed-out second attempt by the
> administration in the week or so after the Court’s decision would not
> likely have been treated as credible by the courts and would have been
> invalidated as still infected with the original pretextual purpose.  I
> suspect the lawyers in the administration told the policy people exactly
> that, if we learn the underlying story at some point.  The only possible
> way the administration would have had a chance at getting a second attempt
> sustained would have been after a lengthy deliberative process, with a
> thorough analysis that explained away the first attempt, credibly, and
> provided a well-justified new explanation.  There was not going to be time
> for a process like that to be undertaken and completed.
>
>
>
> That’s why my belief (my speculation) is that Roberts understood his
> decision meant there would not be a citizenship question on the Census.
> Maybe he was not 100% certain of that, but I would guess 90% or so.
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