588 U.S. 752 (2019)
In March 2018, Secretary of Commerce Wilbur Ross announced in a memorandum that he had decided to reinstate a citizenship question on the 2020 decennial census questionnaire.1 The announcement followed a December 2017 letter from the Department of Justice requesting the question to obtain block-level citizenship data for Voting Rights Act enforcement.2
The Secretary considered three options analyzed by the Census Bureau before selecting a fourth combined approach.3 Two separate suits were filed in the Southern District of New York and later consolidated.4 One suit was brought by eighteen states, the District of Columbia, counties, cities, and the United States Conference of Mayors, alleging violations of the Enumeration Clause and the Administrative Procedure Act.5 The second suit was brought by non-governmental organizations working with immigrant and minority communities and added an equal protection claim.6
In June 2018 the Government submitted the Commerce Department's administrative record, which included the Department of Justice letter and Census Bureau analyses.7 At the Department of Justice's urging, the Government later supplemented the record with an additional memorandum from the Secretary stating that he had begun considering the citizenship question in early 2017.8
Respondents moved to complete the administrative record, and the District Court granted the motion.9 The parties then stipulated to the inclusion of more than 12,000 pages of additional materials.10 Those materials showed that the Secretary and his staff had explored reinstatement of the question shortly after his 2017 confirmation and had sought requests from other agencies before obtaining the Department of Justice letter.11
The District Court also authorized extra-record discovery, including expert discovery and depositions of Department of Justice and Commerce Department officials.12 The Supreme Court stayed the Secretary's deposition but allowed other discovery to proceed.13 After a bench trial, the District Court determined that respondents had standing, ruled that the Secretary's action was arbitrary and capricious, pretextual, and violated the Census Act, and rejected the equal protection claim.14 The Government appealed to the Second Circuit and simultaneously petitioned for a writ of certiorari before judgment, which the Supreme Court granted in 2019.15
Whether at least some respondents have Article III standing to challenge the Secretary of Commerce's decision to reinstate a citizenship question on the 2020 census?16
Article III requires a plaintiff to show a concrete, particularized, and imminent injury that is fairly traceable to the defendant's conduct and likely redressable by a favorable decision.17
Yes. The established facts show that the District Court found a sufficient likelihood that reinstating the citizenship question would cause noncitizen households to respond at lower rates, leading to undercounts.18 Several state respondents demonstrated that even a 2% undercount would cause loss of federal funds distributed on the basis of state population.19 This injury is concrete and imminent, traceable to the Secretary's decision because third parties will react predictably to the question, and redressable by a favorable ruling vacating the decision.20
At least some respondents have Article III standing.21
Whether the Enumeration Clause permits Congress, and by extension the Secretary of Commerce, to inquire about citizenship on the census questionnaire?22
The Enumeration Clause vests Congress with broad authority over the census, informed by long and consistent historical practice that has been open, widespread, and unchallenged since the early days of the Republic.23
Yes. The established facts confirm that every census from 1820 to 2000 asked at least some of the population about citizenship or place of birth, with the question asked of all households until 1950.24 This unbroken historical practice demonstrates that the Clause permits Congress and the Secretary to collect citizenship data through the census.25
The Enumeration Clause permits the citizenship question.26
Whether the Secretary of Commerce's decision to reinstate a citizenship question on the 2020 census is reviewable under the Administrative Procedure Act?27
Yes. The established facts show that the Census Act authorizes the Secretary to determine the form and content of the census.31 The Act constrains that authority through provisions such as section 195 on sampling and section 6(c) on administrative records.32 These provisions furnish standards against which the Secretary's action can be judged, so the decision is subject to APA review.
The Secretary's decision is reviewable under the APA.
Related opinions on this issue
Justice Alito concluded that the Secretary's decision on the form and content of the census is committed to agency discretion by law under 5 U.S.C. §701(a)(2) and therefore unreviewable.33 He reasoned that 13 U.S.C. §141(a) grants the Secretary unfettered discretion to determine the inquiries on the census questionnaire.34 That conclusion is reinforced by the absence of any historical tradition of judicial review of census content decisions and the lack of judicially manageable standards.
Alito would have dismissed the APA claims on that ground while acknowledging that constitutional challenges remain available.35
Whether the Secretary of Commerce's decision to reinstate a citizenship question on the 2020 census was arbitrary and capricious or based on a pretextual rationale?36
No. The established facts show that the Secretary examined the Census Bureau's analyses of three options, rejected administrative records alone because they covered only 90% of the population, and selected a combined approach that he reasonably viewed as providing the most complete citizenship data.39 The choice between reasonable policy alternatives in the face of uncertainty was the Secretary's to make.40 However, the record reveals that the Secretary began exploring reinstatement of the question a week into his tenure with no mention of Voting Rights Act enforcement, shopped for requests from other agencies, and adopted the VRA rationale only after Commerce officials prompted the Department of Justice.41 The VRA explanation was therefore contrived.42
The decision was not arbitrary and capricious in substance but rested on a pretextual rationale warranting remand.43
Related opinions on this issue
Joined by Gorsuch And Kavanaugh, Jj.
Justice Thomas dissented from the holding that the Secretary's rationale was pretextual.44 He argued that the evidence showed at most that the Secretary had additional unstated reasons and that the VRA rationale still factored into the decision.45 Thomas emphasized the presumption of regularity owed to the Executive and warned that crediting thin accusations of pretext would transform administrative law into endless discovery disputes.46
He noted that the Court had never before invalidated agency action on pretext grounds and that the evidence fell far short of showing bad faith.47 Thomas would have upheld the decision in full.48
Joined by Ginsburg, Sotomayor, And Kagan, Jj.
Justice Breyer joined the Court's pretext holding but wrote separately to argue that the decision was also arbitrary and capricious on the merits.49 He maintained that the Secretary failed to consider the severe risk of an undercount.50 He also maintained that administrative records plus modeling would produce more accurate citizenship data.51
Finally, he maintained that there was no demonstrated need for block-level data to enforce the Voting Rights Act.52 Breyer would have set the decision aside on both pretext and substantive arbitrariness grounds.53
Whether the Secretary of Commerce violated provisions of the Census Act, specifically 13 U.S.C. §6(c) and §141(f), by reinstating the citizenship question?54
Section 6(c) requires the Secretary to use administrative records instead of direct inquiries to the maximum extent possible consistent with the required statistics.55 Section 141(f) requires timely reports to Congress of proposed subjects and questions, with modifications explained when new circumstances arise.56
No. The established facts show that the Secretary determined administrative records alone would not provide the complete and accurate block-level data sought by the Department of Justice, so direct inquiry remained necessary.57 He also submitted a timely March 2018 report to Congress proposing the citizenship question, which satisfied the modification reporting requirement under section 141(f)(3).58 Any technical noncompliance with the reporting sequence was harmless because Congress was fully informed.59
The Secretary did not violate the Census Act.60
Whether respondents failed to show that the Secretary of Commerce's decision violated the Equal Protection Clause?61
An equal protection claim requires proof that the decisionmaker acted with discriminatory animus or intent.62
Yes. The established facts show that after a bench trial the District Court found respondents had not met their burden of demonstrating that the Secretary was motivated by discriminatory animus.63 The record contained no evidence sufficient to establish that the decision was driven by animus rather than the stated policy objectives.64
Respondents failed to show an equal protection violation.65