OP-ED: The Census, the Rule of Law, and Democracy
In a huge victory for our democracy and the rule of law, U.S. District Judge Jesse Furman held that the Trump administration’s effort to add a citizenship question to the 2020 Census violated federal law. In a careful, well-reasoned, and meticulous 277-page opinion, Judge Furman walked through all the justifications U.S. Commerce Secretary Wilbur Ross had offered in support of a citizenship question and found them legally flawed.
The Census is a cornerstone of our democracy. As Judge Furman noted in his opinion, the Constitution imposes on the federal government a clear constitutional mandate “to count every single person residing in the United States, whether citizen or noncitizen, whether living here with legal status or without.” To protect the integrity of this constitutionally-mandated count of all persons, Judge Furman applied basic, uncontroversial principles of separation of powers and administrative regularity.
Even when administrative agencies enjoy broad delegated powers, they cannot run roughshod over legal mandates or twist the facts to reach the result they want. As Judge Furman demonstrated, that’s exactly what happened here. Importantly, Judge Furman based his decision solely on the administrative record assembled below, pre-empting a key argument that the Trump DOJ had levelled against earlier rulings in this case.
There were three primary bases for Judge Furman’s conclusion that Secretary Ross violated federal law. First, Ross flouted the federal statutory mandate that requires the Commerce Secretary to “acquire and use” administrative records “[t]o the maximum extent possible” instead of “conducting direct inquiries.” This provision reflects the fundamental importance of the constitutionally mandated national count of all persons. Congress was concerned that adding new questions might deter participation in the Census, and insisted that the Commerce Secretary look first to administrative records to gather any additional information he or she might want for policy reasons.
When Secretary Ross first formally proposed that the Census ask all persons to report their citizenship, the Census Bureau objected that a mandatory citizenship question “harms the quality of the census count and would use substantially less accurate citizenship data than are available from administrative sources.” Ross demanded a citizenship question anyway, completely ignoring Congress’s directive to use administrative records “to the maximum extent feasible.” This alone, Furman reasoned, required setting aside the citizenship question. “[T]o do otherwise,” he wrote, “would be to sanction a blatant disregard of a critical substantive limitation on the Secretary’s delegated powers.”
Second, Judge Furman held that Secretary Ross played fast and loose with the factual record to justify a pre-ordained result. Ross insisted that he added the citizenship question to ensure the most complete and accurate data, but ignored all the ways that the citizenship question would undercut the constitutionally required count of all persons. As Judge Furman made the point, Ross “alternately ignored, cherry-picked, or badly misconstrued the evidence before him” and “acted irrationally both in light of that evidence and his own stated decisional criteria.” These were, Judge Furman stressed, “classic, clear-cut” violations of long settled law.
Third, Judge Furman held that Secretary Ross’s justification for the citizenship question—to help DOJ better enforce the Voting Rights Act—was pretextual. This justification, Judge Furman concluded, made no sense given that “the VRA was enacted in 1965—fifteen years after a citizenship question last appeared on a census questionnaire sent to every household in the country.” As Furman stressed, “during the entire fifty-four year existence of the VRA, DOJ has never had” the data Ross clamored for. As the evidence showed, Ross made the decision to add the citizenship question and then engineered this implausible defense to back it up. This finding, too, required, setting aside the citizenship question. “[A] court cannot sustain agency action founded on a pretextual or sham justification that conceals the true ‘basis’ for the decision.”
Judge Furman’s opinion is incredibly careful and thoughtful, following the text of the laws Congress put in place to govern the Census, as well as well-settled rules of administrative law long championed by conservative and liberal Justices alike, to prevent political manipulation of a core part of our constitutional democracy. It deserves to be widely celebrated by all who treasure our Constitution’s promise of democracy and equal representation for all.