A federal judge on Tuesday blocked the Trump administration’s plan to add a citizenship question to the 2020 census, with an opinion that found the move by Commerce Secretary Wilbur Ross violated the Administrative Procedure Act.
Furman’s decision, if not overturned by a higher court, is a monumental victory for voting rights activists and immigrant advocates, who feared the question would spook immigrant participation in the census. An undercount of those populations would shift political representation and governmental resources away from those communities, in favor of less diverse, less urban parts of the country. Furthermore, there were strong hints that the citizenship data procured would then be used to exclude non-citizenships from redistricting — a long-sought goal of conservatives that would boost Republicans’ electoral advantages.
In his 277-page opinion, U.S. District Judge Jesse Furman in Manhattan said that Ross “failed to consider several important aspects of the problem; alternately ignored, cherry-picked, or badly misconstrued the evidence in the record before him; acted irrationally both in light of that evidence and his own stated decisional criteria; and failed to justify significant departures from past policies and practices — a veritable smorgasbord of classic, clear-cut APA violations.”
The Justice Department said it was “disappointed” with the decision in a statement that claimed that the “government is legally entitled to include a citizenship question on the census.”
He based the decision on an official record produced by the administration that showed that the Census Bureau had repeatedly advised Ross against adding that question and that the administration’s official reason for adding the question — for Voting Rights Act enforcement — could be achieved in a less costly, less harmful way.
Furman concluded that Ross’ stated justification — to assisted the Justice Department’s VRA enforcement — was pretextual.
“[I]n other words, that he announced his decision in a manner that concealed its true basis rather than explaining it, as the APA required him to do,” the judge said.
The case was a consolidation of two lawsuits — one brought by the ACLU and the other by a multi-state coalition — and is among some half dozen cases across the country challenging the decision, which was announced last March. Furman’s case was he first to go trial and he is the first judge to reach a decision on the merits.
It is also an issue already headed to the Supreme Court, so it is unlikely that Furman’s word will be the last one. After the Trump administration fought tooth and nail Furman’s order that Ross be deposed for the case, the Supreme Court blocked the deposition and scheduled a hearing on whether Ross’ motive for adding the question should play a role in the case for February.
Furman said that his decision Tuesday was based solely on the so-called administrative record — the official record that administration put forward justifying its process of coming to a decision on the question.
By basing his ruling only on the administrative record, Furman segregated his findings from the contentious issue at the heart of dispute the Supreme Court will hear next month.
“Looking beyond the Administrative Record merely confirms the Court’s conclusions and illustrates how egregious the APA violations were,” he said.
While ruling with the challengers on the Administrative Procedures Act claim, the judge did not find a constitutional due process violation, as the challengers alleged.
“In particular, although the Court finds that Secretary Ross’s decision was pretextual, it is unable to find, on the record before it, that the decision was a pretext for impermissible discrimination,” he said. “To be fair to Plaintiffs, it is impossible to know if they could have carried their burden to prove such discriminatory intent had they been allowed to depose Secretary Ross, as the Court had authorized last September.”
His opinion took a not-so-veiled swipe at Justice Neil Gorsuch, who wrote, when the dispute over deposing Ross was at the Supreme Court at an earlier stage, that there was nothing wrong with a new cabinet secretary “cutting through red tape.”
“[A]lthough some may deride its requirements as ‘red tape,’ the APA exists to
protect core constitutional and democratic values,” Furman wrote. “It ensures that agencies exercise only the authority that Congress has given them, that they exercise that authority reasonably, and that they follow applicable procedures — in short, it ensures that agencies remain accountable to the public they serve.”
Furman’s lengthy and thorough opinion went into deep detail about Ross’ public statements about the decision, as well as the internal documents in the administrative record outlining the process of making the decision. Furman said that Ross’ initial explanations about adding the question, including in testimony to Congress, were “materially inaccurate.” The judge meticulously picked apart piece-by-piece claims Ross made about the question, including that it was “well tested,” and about why he was considering adding it.
While he couldn’t make an assessment about why Ross wanted it added, Furman concluded that VRA enforcement was not his reason, given the absence of mention of VRA in early discussions about the move and that Ross aides initially lobbied DOJ and Department of Homeland Security officials with no oversight of the VRA.
“Those efforts make clear that the goal of Secretary Ross and his aides was to launder their request through another agency — that is, to obtain cover for a decision that they had already made — and that the reasons underlying any request from
another agency were secondary, if not irrelevant,” he said.
Furman rattled off a list of inaccurate, if not outright false, statements Ross and his aides made about the process of adding the question.
“Those acts and statements are not the transparent acts and statements one would expect from government officials who have decided, for bona fide and defensible reasons, to change policy. Nor are they the acts and statements of government officials who are merely trying to cut through red tape,” Furman said. “Instead, they are the acts and statements of officials with something to hide.”
Furman blocked the administration from adding the question on the basis of the rationale initially expressed by Ross, in his March memo announcing the decision, or “based on any reasoning that is substantially similar to the reasoning contained in that memorandum.”
“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),” Furman said. “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 deadline for the 2020 questionnaires to go to print is June.
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