Department of Commerce v. New York

(Slip Opinion) OCTOBER TERM, 2018 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader.

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

DEPARTMENT OF COMMERCE ET AL. v. NEW YORK

ET AL.

CERTIORARI BEFORE JUDGMENT TO THE UNITED STATES

COURT OF APPEALS FOR THE SECOND CIRCUIT

No. 18–966. Argued April 23, 2019—Decided June 27, 2019

In order to apportion congressional representatives among the States,

the Constitution requires an “Enumeration” of the population every

10 years, to be made “in such Manner” as Congress “shall by Law di-

rect,” Art. I, §2, cl. 3; Amdt. 14, §2. In the Census Act, Congress del-

egated to the Secretary of Commerce the task of conducting the de-

cennial census “in such form and content as he may determine.” 13

U. S. C. §141(a). The Secretary is aided by the Census Bureau, a sta-

tistical agency in the Department of Commerce. The population

count is also used to allocate federal funds to the States and to draw

electoral districts. The census additionally serves as a means of col-

lecting demographic information used for a variety of purposes.

There have been 23 decennial censuses since 1790. All but one be-

tween 1820 and 2000 asked at least some of the population about

their citizenship or place of birth. The question was asked of all

households until 1950, and was asked of a fraction of the population

on an alternative long-form questionnaire between 1960 and 2000.

In 2010, the citizenship question was moved from the census to the

American Community Survey, which is sent each year to a small

sample of households.

In March 2018, Secretary of Commerce Wilbur Ross announced in

a memo that he had decided to reinstate a citizenship question on the

2020 census questionnaire at the request of the Department of Jus-

tice (DOJ), which sought census block level citizenship data to use in

enforcing the Voting Rights Act (VRA). The Secretary’s memo ex-

plained that the Census Bureau initially analyzed, and the Secretary

considered, three possible courses of action before he chose a fourth

option that combined two of the proposed options: reinstate a citizen-

2 DEPARTMENT OF COMMERCE v. NEW YORK

Syllabus

ship question on the decennial census, and use administrative rec-

ords from other agencies, e.g., the Social Security Administration, to

provide additional citizenship data. The Secretary “carefully consid-

ered” the possibility that reinstating a citizenship question would de-

press the response rate, the long history of the citizenship question

on the census, and several other factors before concluding that “the

need for accurate citizenship data and the limited burden of the ques-

tion” outweighed fears about a lower response rate.

Here, two separate suits filed in Federal District Court in New

York were consolidated: one filed by a group States, counties, cities,

and others, alleging that the Secretary’s decision violated the Enu-

meration Clause and the requirements of the Administrative Proce-

dure Act; the other filed by non-governmental organizations, adding

an equal protection claim. The District Court dismissed the Enu-

meration Clause claim but allowed the other claims to proceed. In

June 2018, the Government submitted the Commerce Department’s

“administrative record”—materials that Secretary Ross considered in

making his decision—including DOJ’s letter requesting reinstate-

ment of the citizenship question. Shortly thereafter, at DOJ’s urging,

the Government supplemented the record with a new memo from the

Secretary, which stated that he had begun considering the addition of

a citizenship question in early 2017 and had asked whether DOJ

would formally request its inclusion. Arguing that the supplemental

memo indicated that the record was incomplete, respondents asked

the District Court to compel the Government to complete the admin-

istrative record. The court granted that request, and the parties

jointly stipulated to the inclusion of additional materials that con-

firmed that the Secretary and his staff began exploring reinstate-

ment of a citizenship question shortly after his 2017 confirmation, at-

tempted to elicit requests for citizenship data from other agencies,

and eventually persuaded DOJ to make the request. The court also

authorized discovery outside the administrative record, including

compelling a deposition of Secretary Ross, which this Court stayed

pending further review. After a bench trial, the District Court de-

termined that respondents had standing to sue. On the merits, it

ruled that the Secretary’s action was arbitrary and capricious, based

on a pretextual rationale, and violated the Census Act, and held that

respondents had failed to show an equal protection violation.

Held:

1. At least some respondents have Article III standing. For a legal

dispute to qualify as a genuine case or controversy, at least one plain-

tiff must “present an injury that is concrete, particularized, and actu-

al or imminent; fairly traceable to the defendant’s challenged behav-

ior; and likely to be redressed by a favorable ruling.” Davis v.

Cite as: 588 U. S. ____ (2019) 3

Syllabus

Federal Election Comm’n, 554 U. S. 724, 733. The District Court con-

cluded that the evidence at trial established a sufficient likelihood

that reinstating a citizenship question would result in noncitizen

households responding to the census at lower rates than other

groups, which would cause them to be undercounted and lead to

many of the injuries respondents asserted—diminishment of political

representation, loss of federal funds, degradation of census data, and

diversion of resources. For purposes of standing, these findings of

fact were not so suspect as to be clearly erroneous. Several state re-

spondents have shown that if noncitizen households are undercount-

ed by as little as 2%, they will lose out on federal funds that are dis-

tributed on the basis of state population. That is a sufficiently

concrete and imminent injury to satisfy Article III, and there is no

dispute that a ruling in favor of respondents would redress that

harm. Pp. 8–11.

2. The Enumeration Clause permits Congress, and by extension

the Secretary, to inquire about citizenship on the census question-

naire. That conclusion follows from Congress’s broad authority over

the census, as informed by long and consistent historical practice that

“has been open, widespread, and unchallenged since the early days of

the Republic.” NLRB v. Noel Canning, 573 U. S. 513, 572 (Scalia, J.,

concurring in judgment). Pp. 11–13.

3. The Secretary’s decision is reviewable under the Administrative

Procedure Act. The APA instructs reviewing courts to set aside agen-

cy action that is “arbitrary, capricious, an abuse of discretion, or oth-

erwise not in accordance with law,” 5 U. S. C. §706(2)(A), but it

makes review unavailable “to the extent that” the agency action is

“committed to agency discretion by law,” §701(a)(2). The Census Act

confers broad authority on the Secretary, but it does not leave his

discretion unbounded. The §701(a)(2) exception is generally limited

to “certain categories of administrative decisions that courts tradi-

tionally have regarded as ‘committed to agency discretion,’ ” Lincoln

v. Vigil, 508 U. S. 182, 191. The taking of the census is not one of

those areas. Nor is the statute drawn so that it furnishes no mean-

ingful standard by which to judge the Secretary’s action, which is

amenable to review for compliance with several Census Act provi-

sions according to the general requirements of reasoned agency deci-

sionmaking. Because this is not a case in which there is “no law to

apply,” Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U. S. 402,

410, the Secretary’s decision is subject to judicial review. Pp. 13–16.

4. The Secretary’s decision was supported by the evidence before

him. He examined the Bureau’s analysis of various ways to collect

improved citizenship data and explained why he thought the best

course was to both reinstate a citizenship question and use citizen-

4 DEPARTMENT OF COMMERCE v. NEW YORK

Syllabus

ship data from administrative records to fill in the gaps. He then

weighed the value of obtaining more complete and accurate citizen-

ship data against the uncertain risk that reinstating a citizenship

question would result in a materially lower response rate, and ex-

plained why he thought the benefits of his approach outweighed the

risk. That decision was reasonable and reasonably explained, partic-

ularly in light of the long history of the citizenship question on the

census. Pp. 16–20.

5. The District Court also erred in ruling that the Secretary violat-

ed two particular provisions of the Census Act, §6(c) and §141(f ).

Section 6’s first two subsections authorize the Secretary to acquire

administrative records from other federal agencies and state and lo-

cal governments, while subsection (c) requires the Secretary, to the

maximum extent possible, to use that information “instead of con-

ducting direct inquiries.” Assuming that §6(c) applies, the Secretary

complied with it for essentially the same reasons that his decision

was not arbitrary and capricious: Administrative records would not,

in his judgment, provide the more complete and accurate data that

DOJ sought. The Secretary also complied with §141(f ), which re-

quires him to make a series of reports to Congress about his plans for

the census. And even if he had violated that provision, the error

would be harmless because he fully informed Congress of, and ex-

plained, his decision. Pp. 20–23.

6. In order to permit meaningful judicial review, an agency must

“ ‘disclose the basis’ ” of its action. Burlington Truck Lines, Inc. v.

United States, 371 U. S. 156, 167–169. A court is ordinarily limited

to evaluating the agency’s contemporaneous explanation in light of

the existing administrative record, Vermont Yankee Nuclear Power

Corp. v. Natural Resources Defense Council, Inc., 435 U. S. 519, but it

may inquire into “the mental processes of administrative deci-

sionmakers” upon a “strong showing of bad faith or improper behav-

ior,” Overton Park, 401 U. S., at 420. While the District Court pre-

maturely invoked that exception in ordering extra-record discovery

here, it was ultimately justified in light of the expanded administra-

tive record. Accordingly, the District Court’s ruling on pretext will be

reviewed in light of all the evidence in the record, including the extra-

record discovery.

It is hardly improper for an agency head to come into office with

policy preferences and ideas, discuss them with affected parties,

sound out other agencies for support, and work with staff attorneys

to substantiate the legal basis for a preferred policy. Yet viewing the

evidence as a whole, this Court shares the District Court’s conviction

that the decision to reinstate a citizenship question cannot adequate-

ly be explained in terms of DOJ’s request for improved citizenship

Cite as: 588 U. S. ____ (2019) 5

Syllabus

data to better enforce the VRA. Several points, taken together, re-

veal a significant mismatch between the Secretary’s decision and the

rationale he provided. The record shows that he began taking steps

to reinstate the question a week into his tenure, but gives no hint

that he was considering VRA enforcement. His director of policy at-

tempted to elicit requests for citizenship data from the Department of

Homeland Security and DOJ’s Office of Immigration Review before

turning to the VRA rationale and DOJ’s Civil Rights Division. For its

part, DOJ’s actions suggest that it was more interested in helping the

Commerce Department than in securing the data. Altogether, the ev-

idence tells a story that does not match the Secretary’s explanation

for his decision. Unlike a typical case in which an agency may have

both stated and unstated reasons for a decision, here the VRA en-

forcement rationale—the sole stated reason—seems to have been con-

trived. The reasoned explanation requirement of administrative law

is meant to ensure that agencies offer genuine justifications for im-

portant decisions, reasons that can be scrutinized by courts and the

interested public. The explanation provided here was more of a dis-

traction. In these unusual circumstances, the District Court was

warranted in remanding to the agency. See Florida Power & Light

Co. v. Lorion, 470 U. S. 729, 744. Pp. 23–28.

351 F. Supp. 3d 502, affirmed in part, reversed in part, and remanded.

ROBERTS, C. J., delivered the opinion for a unanimous Court with

respect to Parts I and II, and the opinion of the Court with respect to

Parts III, IV–B, and IV–C, in which THOMAS, ALITO, GORSUCH, and KAV-

ANAUGH, JJ., joined; with respect to Part IV–A, in which THOMAS,

GINSBURG, BREYER, SOTOMAYOR, KAGAN, and KAVANAUGH, JJ., joined;

and with respect to Part V, in which GINSBURG, BREYER, SOTOMAYOR,

and KAGAN, JJ., joined. THOMAS, J., filed an opinion concurring in part

and dissenting in part, in which GORSUCH and KAVANAUGH, JJ., joined.

BREYER, J., filed an opinion concurring in part and dissenting in part,

in which GINSBURG, SOTOMAYOR, and KAGAN, JJ., joined. ALITO, J., filed

an opinion concurring in part and dissenting in part.

Cite as: 588 U. S. ____ (2019) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Wash-

ington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

_________________

No. 18–966

_________________

DEPARTMENT OF COMMERCE, ET AL., PETITIONERS

v. NEW YORK, ET AL.

ON WRIT OF CERTIORARI BEFORE JUDGMENT TO THE UNITED

STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

[June 27, 2019]

CHIEF JUSTICE ROBERTS delivered the opinion of the

Court.

The Secretary of Commerce decided to reinstate a ques-

tion about citizenship on the 2020 census questionnaire.

A group of plaintiffs challenged that decision on constitu-

tional and statutory grounds. We now decide whether the

Secretary violated the Enumeration Clause of the Consti-

tution, the Census Act, or otherwise abused his discretion.

I

A

In order to apportion Members of the House of Repre-

sentatives among the States, the Constitution requires an

“Enumeration” of the population every 10 years, to be

made “in such Manner” as Congress “shall by Law direct.”

Art. I, §2, cl. 3; Amdt. 14, §2. In the Census Act, Congress

delegated to the Secretary of Commerce the task of con-

ducting the decennial census “in such form and content as

he may determine.” 13 U. S. C. §141(a). The Secretary is

aided in that task by the Census Bureau, a statistical

agency housed within the Department of Commerce. See

§§2, 21.

2 DEPARTMENT OF COMMERCE v. NEW YORK

Opinion of the Court

The population count derived from the census is used

not only to apportion representatives but also to allocate

federal funds to the States and to draw electoral districts.

Wisconsin v. City of New York, 517 U. S. 1, 5–6 (1996).

The census additionally serves as a means of collecting

demographic information, which “is used for such varied

purposes as computing federal grant-in-aid benefits, draft-

ing of legislation, urban and regional planning, business

planning, and academic and social studies.” Baldrige v.

Shapiro, 455 U. S. 345, 353–354, n. 9 (1982). Over the

years, the census has asked questions about (for example)

race, sex, age, health, education, occupation, housing, and

military service. It has also asked about radio ownership,

age at first marriage, and native tongue. The Census Act

obliges everyone to answer census questions truthfully

and requires the Secretary to keep individual answers

confidential, including from other Government agencies.

§§221, 8(b), 9(a).

There have been 23 decennial censuses from the first

census in 1790 to the most recent in 2010. Every census

between 1820 and 2000 (with the exception of 1840) asked

at least some of the population about their citizenship or

place of birth. Between 1820 and 1950, the question was

asked of all households. Between 1960 and 2000, it was

asked of about one-fourth to one-sixth of the population.

That change was part of a larger effort to simplify the

census by asking most people a few basic demographic

questions (such as sex, age, race, and marital status) on a

short-form questionnaire, while asking a sample of the

population more detailed demographic questions on a

long-form questionnaire. In explaining the decision to

move the citizenship question to the long-form question-

naire, the Census Bureau opined that “general census

information on citizenship had become of less importance

compared with other possible questions to be included in

the census, particularly in view of the recent statutory

Cite as: 588 U. S. ____ (2019) 3

Opinion of the Court

requirement for annual alien registration which could

provide the Immigration and Naturalization Service, the

principal user of such data, with the information it needed.”

Dept. of Commerce, Bureau of Census, 1960 Censuses of

Population and Housing 194 (1966). 1

In 2010, the year of the latest census, the format

changed again. All households received the same ques-

tionnaire, which asked about sex, age, race, Hispanic

origin, and living arrangements. The more detailed demo-

graphic questions previously asked on the long-form ques-

tionnaire, including the question about citizenship, were

instead asked in the American Community Survey (or

ACS), which is sent each year to a rotating sample of

about 2.6% of households.

The Census Bureau and former Bureau officials have

resisted occasional proposals to resume asking a citizen-

ship question of everyone, on the ground that doing so

would discourage noncitizens from responding to the

census and lead to a less accurate count of the total popu-

lation. See, e.g., Federation of Am. Immigration Reform v.

Klutznick, 486 F. Supp. 564, 568 (DC 1980) (“[A]ccording

to the Bureau[,] any effort to ascertain citizenship will

inevitably jeopardize the overall accuracy of the popula-

tion count”); Brief for Former Directors of the U. S. Census

Bureau as Amici Curiae in Evenwel v. Abbott, O. T. 2014,

No. 14–940, p. 25 (inquiring about citizenship would “in-

variably lead to a lower response rate”).

B

In March 2018, Secretary of Commerce Wilbur Ross

announced in a memo that he had decided to reinstate a

question about citizenship on the 2020 decennial census

questionnaire. The Secretary stated that he was acting at

——————

1 The annual alien registration requirement was repealed in 1981.

See §11, 95 Stat. 1617 (1981).

4 DEPARTMENT OF COMMERCE v. NEW YORK

Opinion of the Court

the request of the Department of Justice (DOJ), which

sought improved data about citizen voting-age population

for purposes of enforcing the Voting Rights Act (or VRA)—

specifically the Act’s ban on diluting the influence of mi-

nority voters by depriving them of single-member districts

in which they can elect their preferred candidates. App. to

Pet. for Cert. 548a. DOJ explained that federal courts

determine whether a minority group could constitute a

majority in a particular district by looking to the citizen

voting-age population of the group. According to DOJ, the

existing citizenship data from the American Community

Survey was not ideal: It was not reported at the level of

the census block, the basic component of legislative dis-

tricting plans; it had substantial margins of error; and it

did not align in time with the census-based population

counts used to draw legislative districts. DOJ therefore

formally requested reinstatement of the citizenship ques-

tion on the census questionnaire. Id., at 565a–569a.

The Secretary’s memo explained that the Census Bu-

reau initially analyzed, and the Secretary considered,

three possible courses of action. The first was to continue

to collect citizenship information in the American Com-

munity Survey and attempt to develop a data model that

would more accurately estimate citizenship at the census

block level. The Secretary rejected that option because the

Bureau “did not assert and could not confirm” that such

ACS-based data modeling was possible “with a sufficient

degree of accuracy.” Id., at 551a.

The second option was to reinstate a citizenship ques-

tion on the decennial census. The Bureau predicted that

doing so would discourage some noncitizens from respond-

ing to the census. That would necessitate increased “non-

response follow up” operations—procedures the Bureau

uses to attempt to count people who have not responded to

the census—and potentially lead to a less accurate count

of the total population.

Cite as: 588 U. S. ____ (2019) 5

Opinion of the Court

Option three was to use administrative records from

other agencies, such as the Social Security Administration

and Citizenship and Immigration Services, to provide DOJ

with citizenship data. The Census Bureau recommended

this option, and the Secretary found it a “potentially ap-

pealing solution” because the Bureau has long used ad-

ministrative records to supplement and improve census

data. Id., at 554a. But the Secretary concluded that

administrative records alone were inadequate because

they were missing for more than 10% of the population.

The Secretary ultimately asked the Census Bureau to

develop a fourth option that would combine options two

and three: reinstate a citizenship question on the census

questionnaire, and also use the time remaining until the

2020 census to “further enhance” the Bureau’s “adminis-

trative record data sets, protocols, and statistical models.”

Id., at 555a. The memo explained that, in the Secretary’s

judgment, the fourth option would provide DOJ with the

“most complete and accurate” citizen voting-age popula-

tion data in response to its request. Id., at 556a.

The Secretary “carefully considered” the possibility

that reinstating a citizenship question would depress

the response rate. Ibid. But after evaluating the

Bureau’s “limited empirical evidence” on the question—

evidence drawn from estimated non-response rates to

previous American Community Surveys and census

questionnaires—the Secretary concluded that it was not

possible to “determine definitively” whether inquiring

about citizenship in the census would materially affect

response rates. Id., at 557a, 562a. He also noted the long

history of the citizenship question on the census, as well

as the facts that the United Nations recommends collect-

ing census-based citizenship information, and other major

democracies such as Australia, Canada, France, Indonesia,

Ireland, Germany, Mexico, Spain, and the United Kingdom

inquire about citizenship in their censuses. Altogether,

6 DEPARTMENT OF COMMERCE v. NEW YORK

Opinion of the Court

the Secretary determined that “the need for accurate

citizenship data and the limited burden that the rein-

statement of the citizenship question would impose out-

weigh fears about a potentially lower response rate.” Id.,

at 557a.

C

Shortly after the Secretary announced his decision, two

groups of plaintiffs filed suit in Federal District Court in

New York, challenging the decision on several grounds.

The first group of plaintiffs included 18 States, the District

of Columbia, various counties and cities, and the United

States Conference of Mayors. They alleged that the Secre-

tary’s decision violated the Enumeration Clause of the

Constitution and the requirements of the Administrative

Procedure Act. The second group of plaintiffs consisted of

several non-governmental organizations that work with

immigrant and minority communities. They added an

equal protection claim. The District Court consolidated

the two cases. Both groups of plaintiffs are respondents

here.

The Government moved to dismiss the lawsuits, arguing

that the Secretary’s decision was unreviewable and that

respondents had failed to state cognizable claims under

the Enumeration Clause and the Equal Protection Clause.

The District Court dismissed the Enumeration Clause

claim but allowed the other claims to proceed. 315 F.

Supp. 3d 766 (SDNY 2018).

In June 2018, the Government submitted to the District

Court the Commerce Department’s “administrative rec-

ord”: the materials that Secretary Ross considered in

making his decision. That record included DOJ’s Decem-

ber 2017 letter requesting reinstatement of the citizenship

question, as well as several memos from the Census Bu-

reau analyzing the predicted effects of reinstating the

question. Shortly thereafter, at DOJ’s urging, the Gov-

Cite as: 588 U. S. ____ (2019) 7

Opinion of the Court

ernment supplemented the record with a new memo from

the Secretary, “intended to provide further background

and context regarding” his March 2018 memo. App. to

Pet. for Cert. 546a. The supplemental memo stated that

the Secretary had begun considering whether to add the

citizenship question in early 2017, and had inquired

whether DOJ “would support, and if so would request,

inclusion of a citizenship question as consistent with and

useful for enforcement of the Voting Rights Act.” Ibid.

According to the Secretary, DOJ “formally” requested

reinstatement of the citizenship question after that in-

quiry. Ibid.

Respondents argued that the supplemental memo indi-

cated that the Government had submitted an incomplete

record of the materials considered by the Secretary. They

asked the District Court to compel the Government to

complete the administrative record. The court granted

that request, and the parties jointly stipulated to the

inclusion of more than 12,000 pages of additional materi-

als in the administrative record. Among those materials

were emails and other records confirming that the Secre-

tary and his staff began exploring the possibility of rein-

stating a citizenship question shortly after he was con-

firmed in early 2017, attempted to elicit requests for

citizenship data from other agencies, and eventually per-

suaded DOJ to request reinstatement of the question for

VRA enforcement purposes.

In addition, respondents asked the court to authorize

discovery outside the administrative record. They claimed

that such an unusual step was warranted because they

had made a strong preliminary showing that the Secretary

had acted in bad faith. See Citizens to Preserve Overton

Park, Inc. v. Volpe, 401 U. S. 402, 420 (1971). The court

also granted that request, authorizing expert discovery

and depositions of certain DOJ and Commerce Depart-

ment officials.

8 DEPARTMENT OF COMMERCE v. NEW YORK

Opinion of the Court

In August and September 2018, the District Court

issued orders compelling depositions of Secretary Ross and

of the Acting Assistant Attorney General for DOJ’s Civil

Rights Division. We granted the Government’s request to

stay the Secretary’s deposition pending further review, but

we declined to stay the Acting AAG’s deposition or the

other extra-record discovery that the District Court had

authorized.

The District Court held a bench trial and issued findings

of fact and conclusions of law on respondents’ statutory

and equal protection claims. After determining that re-

spondents had standing to sue, the District Court ruled

that the Secretary’s action was arbitrary and capricious,

based on a pretextual rationale, and violated certain

provisions of the Census Act. On the equal protection

claim, however, the District Court concluded that re-

spondents had not met their burden of showing that the

Secretary was motivated by discriminatory animus. The

court granted judgment to respondents on their statutory

claims, vacated the Secretary’s decision, and enjoined him

from reinstating the citizenship question until he cured

the legal errors the court had identified. 351 F. Supp. 3d

502 (SDNY 2019).

The Government appealed to the Second Circuit, but

also filed a petition for writ of certiorari before judgment,

asking this Court to review the District Court’s decision

directly because the case involved an issue of imperative

public importance, and the census questionnaire needed to

be finalized for printing by the end of June 2019. We

granted the petition. 586 U. S. ___ (2019). At the Gov-

ernment’s request, we later ordered the parties to address

whether the Enumeration Clause provided an alternative

basis to affirm. 586 U. S. ___ (2019).

II

We begin with jurisdiction. Article III of the Constitu-

Cite as: 588 U. S. ____ (2019) 9

Opinion of the Court

tion limits federal courts to deciding “Cases” and “Contro-

versies.” For a legal dispute to qualify as a genuine case

or controversy, at least one plaintiff must have standing to

sue. The doctrine of standing “limits the category of liti-

gants empowered to maintain a lawsuit in federal court to

seek redress for a legal wrong” and “confines the federal

courts to a properly judicial role.” Spokeo, Inc. v. Robins,

578 U. S. ___, ___ (2016) (slip op., at 6). To have standing,

a plaintiff must “present an injury that is concrete, partic-

ularized, and actual or imminent; fairly traceable to the

defendant’s challenged behavior; and likely to be re-

dressed by a favorable ruling.” Davis v. Federal Election

Comm’n, 554 U. S. 724, 733 (2008).

Respondents assert a number of injuries—diminishment

of political representation, loss of federal funds, degrada-

tion of census data, and diversion of resources—all of

which turn on their expectation that reinstating a citizen-

ship question will depress the census response rate and

lead to an inaccurate population count. Several States

with a disproportionate share of noncitizens, for example,

anticipate losing a seat in Congress or qualifying for less

federal funding if their populations are undercounted.

These are primarily future injuries, which “may suffice if

the threatened injury is certainly impending, or there is a

substantial risk that the harm will occur.” Susan B.

Anthony List v. Driehaus, 573 U. S. 149, 158 (2014) (inter-

nal quotation marks omitted).

The District Court concluded that the evidence at trial

established a sufficient likelihood that the reinstatement

of a citizenship question would result in noncitizen house-

holds responding to the census at lower rates than other

groups, which in turn would cause them to be undercounted

and lead to many of respondents’ asserted injuries. For

purposes of standing, these findings of fact were not so

suspect as to be clearly erroneous.

We therefore agree that at least some respondents have

10 DEPARTMENT OF COMMERCE v. NEW YORK

Opinion of the Court

Article III standing. Several state respondents here have

shown that if noncitizen households are undercounted by

as little as 2%—lower than the District Court’s 5.8% pre-

diction—they will lose out on federal funds that are dis-

tributed on the basis of state population. That is a suffi-

ciently concrete and imminent injury to satisfy Article III,

and there is no dispute that a ruling in favor of respond-

ents would redress that harm.

The Government contends, however, that any harm to

respondents is not fairly traceable to the Secretary’s deci-

sion, because such harm depends on the independent

action of third parties choosing to violate their legal duty

to respond to the census. The chain of causation is made

even more tenuous, the Government argues, by the fact

that such intervening, unlawful third-party action would

be motivated by unfounded fears that the Federal Gov-

ernment will itself break the law by using noncitizens’

answers against them for law enforcement purposes. The

Government invokes our steady refusal to “endorse stand-

ing theories that rest on speculation about the decisions of

independent actors,” Clapper v. Amnesty Int’l USA, 568

U. S. 398, 414 (2013), particularly speculation about

future unlawful conduct, Los Angeles v. Lyons, 461 U. S.

95, 105 (1983).

But we are satisfied that, in these circumstances, re-

spondents have met their burden of showing that third

parties will likely react in predictable ways to the citizen-

ship question, even if they do so unlawfully and despite

the requirement that the Government keep individual

answers confidential. The evidence at trial established

that noncitizen households have historically responded to

the census at lower rates than other groups, and the Dis-

trict Court did not clearly err in crediting the Census

Bureau’s theory that the discrepancy is likely attributable

at least in part to noncitizens’ reluctance to answer a

citizenship question. Respondents’ theory of standing

Cite as: 588 U. S. ____ (2019) 11

Opinion of the Court

thus does not rest on mere speculation about the decisions

of third parties; it relies instead on the predictable effect of

Government action on the decisions of third parties. Cf.

Bennett v. Spear, 520 U. S. 154, 169–170 (1997); Davis,

554 U. S., at 734–735. Because Article III “requires no

more than de facto causality,” Block v. Meese, 793 F. 2d

1303, 1309 (CADC 1986) (Scalia, J.), traceability is satis-

fied here. We may therefore consider the merits of re-

spondents’ claims, at least as far as the Constitution is

concerned.

III

The Enumeration Clause of the Constitution does not

provide a basis to set aside the Secretary’s decision. The

text of that clause “vests Congress with virtually unlim-

ited discretion in conducting the decennial ‘actual Enu-

meration,’ ” and Congress “has delegated its broad authority

over the census to the Secretary.” Wisconsin, 517 U. S., at

19. Given that expansive grant of authority, we have

rejected challenges to the conduct of the census where the

Secretary’s decisions bore a “reasonable relationship to the

accomplishment of an actual enumeration.” Id., at 20.

Respondents ask us to evaluate the Secretary’s decision

to reinstate a citizenship question under that “reasonable

relationship” standard, but we agree with the District

Court that a different analysis is needed here. Our cases

applying that standard concerned decisions about the

population count itself—such as a postcensus decision not

to use a particular method to adjust an undercount, id., at

4, and a decision to allocate overseas military personnel to

their home States, Franklin v. Massachusetts, 505 U. S.

788, 790–791 (1992). We have never applied the standard

to decisions about what kinds of demographic information

to collect in the course of taking the census. Indeed, as the

District Court recognized, applying the “reasonable rela-

tionship” standard to every census-related decision “would

12 DEPARTMENT OF COMMERCE v. NEW YORK

Opinion of the Court

lead to the conclusion that it is unconstitutional to ask any

demographic question on the census” because “asking such

questions bears no relationship whatsoever to the goal of

an accurate headcount.” 315 F. Supp. 3d, at 804–805. Yet

demographic questions have been asked in every census

since 1790, and questions about citizenship in particular

have been asked for nearly as long. Like the District

Court, we decline respondents’ invitation to measure the

constitutionality of the citizenship question by a stand-

ard that would seem to render every census since 1790

unconstitutional.

We look instead to Congress’s broad authority over the

census, as informed by long and consistent historical

practice. All three branches of Government have under-

stood the Constitution to allow Congress, and by extension

the Secretary, to use the census for more than simply

counting the population. Since 1790, Congress has sought,

or permitted the Secretary to seek, information about

matters as varied as age, sex, marital status, health,

trade, profession, literacy, and value of real estate owned.

See id., at 801. Since 1820, it has sought, or permitted the

Secretary to seek, information about citizenship in partic-

ular. Federal courts have approved the practice of collect-

ing demographic data in the census. See, e.g., United

States v. Moriarity, 106 F. 886, 891 (CC SDNY 1901) (duty

to take a census of population “does not prohibit the gath-

ering of other statistics, if ‘necessary and proper,’ for the

intelligent exercise of other powers enumerated in the

constitution”). While we have never faced the question

directly, we have assumed that Congress has the power to

use the census for information-gathering purposes, see

Legal Tender Cases, 12 Wall. 457, 536 (1871), and we have

recognized the role of the census as a “linchpin of the

federal statistical system by collecting data on the charac-

teristics of individuals, households, and housing units

throughout the country,” Department of Commerce v.

Cite as: 588 U. S. ____ (2019) 13

Opinion of the Court

United States House of Representatives, 525 U. S. 316, 341

(1999) (internal quotation marks omitted).

That history matters. Here, as in other areas, our

interpretation of the Constitution is guided by a Govern-

ment practice that “has been open, widespread, and un-

challenged since the early days of the Republic.” NLRB v.

Noel Canning, 573 U. S. 513, 572 (2014) (Scalia, J., con-

curring in judgment); see also Wisconsin, 517 U. S., at 21

(noting “importance of historical practice” in census con-

text). In light of the early understanding of and long

practice under the Enumeration Clause, we conclude that

it permits Congress, and by extension the Secretary, to

inquire about citizenship on the census questionnaire. We

need not, and do not, decide the constitutionality of any

other question that Congress or the Secretary might de-

cide to include in the census.

IV

The District Court set aside the Secretary’s decision to

reinstate a citizenship question on the grounds that the

Secretary acted arbitrarily and violated certain provisions

of the Census Act. The Government contests those rul-

ings, but also argues that the Secretary’s decision was not

judicially reviewable under the Administrative Procedure

Act in the first place. We begin with that contention.

A

The Administrative Procedure Act embodies a “basic

presumption of judicial review,” Abbott Laboratories v.

Gardner, 387 U. S. 136, 140 (1967), and instructs review-

ing courts to set aside agency action that is “arbitrary,

capricious, an abuse of discretion, or otherwise not in

accordance with law,” 5 U. S. C. §706(2)(A). Review is not

available, however, “to the extent that” a relevant statute

precludes it, §701(a)(1), or the agency action is “committed

to agency discretion by law,” §701(a)(2). The Government

14 DEPARTMENT OF COMMERCE v. NEW YORK

Opinion of the Court

argues that the Census Act commits to the Secretary’s

unreviewable discretion decisions about what questions to

include on the decennial census questionnaire.

We disagree. To be sure, the Act confers broad authority

on the Secretary. Section 141(a) instructs him to take “a

decennial census of population” in “such form and content

as he may determine, including the use of sampling proce-

dures and special surveys.” 13 U. S. C. §141. The Act

defines “census of population” to mean “a census of popu-

lation, housing, and matters relating to population and

housing,” §141(g), and it authorizes the Secretary, in

“connection with any such census,” to “obtain such other

census information as necessary,” §141(a). It also states

that the “Secretary shall prepare questionnaires, and shall

determine the inquiries, and the number, form, and subdi-

visions thereof, for the statistics, surveys, and censuses

provided for in this title.” §5. And it authorizes him to

acquire materials, such as administrative records, from

other federal, state, and local agencies in aid of conducting

the census. §6. Those provisions leave much to the

Secretary’s discretion. See Wisconsin, 517 U. S., at 19

(“Through the Census Act, Congress has delegated its

broad authority over the census to the Secretary.”).

But they do not leave his discretion unbounded. In

order to give effect to the command that courts set aside

agency action that is an abuse of discretion, and to honor

the presumption of judicial review, we have read the

§701(a)(2) exception for action committed to agency discre-

tion “quite narrowly, restricting it to ‘those rare circum-

stances where the relevant statute is drawn so that a

court would have no meaningful standard against which to

judge the agency’s exercise of discretion.’ ” Weyerhaeuser

Co. v. United States Fish and Wildlife Serv., 586 U. S. ___,

___ (2018) (slip op., at 12) (quoting Lincoln v. Vigil, 508

U. S. 182, 191 (1993)). And we have generally limited the

exception to “certain categories of administrative decisions

Cite as: 588 U. S. ____ (2019) 15

Opinion of the Court

that courts traditionally have regarded as ‘committed to

agency discretion,’ ” id., at 191, such as a decision not to

institute enforcement proceedings, Heckler v. Chaney, 470

U. S. 821, 831–832 (1985), or a decision by an intelligence

agency to terminate an employee in the interest of national

security, Webster v. Doe, 486 U. S. 592, 600–601 (1988).

The taking of the census is not one of those areas tradi-

tionally committed to agency discretion. We and other

courts have entertained both constitutional and statutory

challenges to census-related decisionmaking. See, e.g.,

Department of Commerce, 525 U. S. 316; Wisconsin, 517

U. S. 1; Carey v. Klutznick, 637 F. 2d 834 (CA2 1980).

Nor is the statute here drawn so that it furnishes no

meaningful standard by which to judge the Secretary’s

action. In contrast to the National Security Act in Web-

ster, which gave the Director of Central Intelligence dis-

cretion to terminate employees whenever he “deem[ed]” it

“advisable,” 486 U. S., at 594, the Census Act constrains

the Secretary’s authority to determine the form and con-

tent of the census in a number of ways. Section 195, for

example, governs the extent to which he can use statistical

sampling. Section 6(c), which will be considered in more

detail below, circumscribes his power in certain circum-

stances to collect information through direct inquiries

when administrative records are available. More generally,

by mandating a population count that will be used to

apportion representatives, see §141(b), 2 U. S. C. §2a, the

Act imposes “a duty to conduct a census that is accurate

and that fairly accounts for the crucial representational

rights that depend on the census and the apportionment.”

Franklin, 505 U. S., at 819–820 (Stevens, J., concurring in

part and concurring in judgment).

The Secretary’s decision to reinstate a citizenship ques-

tion is amenable to review for compliance with those and

other provisions of the Census Act, according to the gen-

eral requirements of reasoned agency decisionmaking.

16 DEPARTMENT OF COMMERCE v. NEW YORK

Opinion of the Court

Because this is not a case in which there is “no law to

apply,” Overton Park, 401 U. S., at 410, the Secretary’s

decision is subject to judicial review.

B

At the heart of this suit is respondents’ claim that the

Secretary abused his discretion in deciding to reinstate a

citizenship question. We review the Secretary’s exercise of

discretion under the deferential “arbitrary and capricious”

standard. See 5 U. S. C. §706(2)(A). Our scope of review

is “narrow”: we determine only whether the Secretary

examined “the relevant data” and articulated “a satisfac-

tory explanation” for his decision, “including a rational

connection between the facts found and the choice made.”

Motor Vehicle Mfrs. Assn. of United States, Inc. v. State

Farm Mut. Automobile Ins. Co., 463 U. S. 29, 43 (1983)

(internal quotation marks omitted). We may not substi-

tute our judgment for that of the Secretary, ibid., but

instead must confine ourselves to ensuring that he re-

mained “within the bounds of reasoned decisionmaking,”

Baltimore Gas & Elec. Co. v. Natural Resources Defense

Council, Inc., 462 U. S. 87, 105 (1983).

The District Court set aside the Secretary’s decision for

two independent reasons: His course of action was not

supported by the evidence before him, and his stated

rationale was pretextual. We focus on the first point here

and take up the question of pretext later.

The Secretary examined the Bureau’s analysis of vari-

ous ways to collect improved citizenship data and ex-

plained why he thought the best course was to both rein-

state a citizenship question and use citizenship data from

administrative records to fill in the gaps. He considered

but rejected the Bureau’s recommendation to use adminis-

trative records alone. As he explained, records are lacking

for about 10% of the population, so the Bureau would still

need to estimate citizenship for millions of voting-age

Cite as: 588 U. S. ____ (2019) 17

Opinion of the Court

people. Asking a citizenship question of everyone, the

Secretary reasoned, would eliminate the need to estimate

citizenship for many of those people. And supplementing

census responses with administrative record data would

help complete the picture and allow the Bureau to better

estimate citizenship for the smaller set of cases where it

was still necessary to do so.

The evidence before the Secretary supported that deci-

sion. As the Bureau acknowledged, each approach—using

administrative records alone, or asking about citizenship

and using records to fill in the gaps—entailed tradeoffs

between accuracy and completeness. Without a citizen-

ship question, the Bureau would need to estimate the

citizenship of about 35 million people; with a citizenship

question, it would need to estimate the citizenship of only

13.8 million. Under either approach, there would be some

errors in both the administrative records and the Bureau’s

estimates. With a citizenship question, there would also

be some erroneous self-responses (about 500,000) and

some conflicts between responses and administrative

record data (about 9.5 million).

The Bureau explained that the “relative quality” of the

citizenship data generated by each approach would depend

on the “relative importance of the errors” in each, but it

was not able to “quantify the relative magnitude of the

errors across the alternatives.” App. 148. The Bureau

nonetheless recommended using administrative records

alone because it had “high confidence” that it could develop

an accurate model for estimating the citizenship of the 35

million people for whom administrative records were not

available, and it thought the resulting citizenship data

would be of superior quality. Id., at 146, 158–159. But

when the time came for the Secretary to make a decision,

the model did not yet exist, and even if it had, there was

no way to gauge its relative accuracy. As the Bureau put

it, “we will most likely never possess a fully adequate

18 DEPARTMENT OF COMMERCE v. NEW YORK

Opinion of the Court

truth deck to benchmark” the model—which appears to be

bureaucratese for “maybe, maybe not.” Id., at 146. The

Secretary opted instead for the approach that would yield

a more complete set of data at an acceptable rate of accu-

racy, and would require estimating the citizenship of

fewer people.

The District Court overruled that choice, agreeing with

the Bureau’s assessment that its recommended approach

would yield higher quality citizenship data on the whole.

But the choice between reasonable policy alternatives in

the face of uncertainty was the Secretary’s to make. He

considered the relevant factors, weighed risks and bene-

fits, and articulated a satisfactory explanation for his

decision. In overriding that reasonable exercise of discre-

tion, the court improperly substituted its judgment for

that of the agency.

The Secretary then weighed the benefit of collecting

more complete and accurate citizenship data against the

risk that inquiring about citizenship would depress census

response rates, particularly among noncitizen households.

In the Secretary’s view, that risk was difficult to assess.

The Bureau predicted a 5.1% decline in response rates

among noncitizen households if the citizenship question

were reinstated. 2 It relied for that prediction primarily on

studies showing that, while noncitizens had responded at

lower rates than citizens to the 2000 short-form and 2010

censuses, which did not ask about citizenship, they re-

sponded at even lower rates than citizens to the 2000 long-

form census and the 2010 American Community Survey,

which did ask about citizenship. The Bureau thought it

was reasonable to infer that the citizenship question

accounted for the differential decline in noncitizen re-

——————

2 Several months after the Secretary made his decision, the Bureau

updated its prediction to 5.8%, the figure the District Court later relied

on in its standing analysis. See 351 F. Supp. 3d 502, 579 (SDNY 2019).

Cite as: 588 U. S. ____ (2019) 19

Opinion of the Court

sponses. But, the Secretary explained, the Bureau was

unable to rule out other causes. For one thing, the evi-

dence before the Secretary suggested that noncitizen

households tend to be more distrustful of, and less likely

to respond to, any government effort to collect infor-

mation. For another, both the 2000 long-form census and

2010 ACS asked over 45 questions on a range of topics,

including employment, income, and housing characteris-

tics. Noncitizen households might disproportionately fail

to respond to a lengthy and intrusive Government ques-

tionnaire for a number of reasons besides reluctance to

answer a citizenship question—reasons relating to educa-

tion level, socioeconomic status, and less exposure to

Government outreach efforts. See App. to Pet. for Cert.

553a–554a, 557a–558a.

The Secretary justifiably found the Bureau’s analysis

inconclusive. Weighing that uncertainty against the value

of obtaining more complete and accurate citizenship data,

he determined that reinstating a citizenship question was

worth the risk of a potentially lower response rate. That

decision was reasonable and reasonably explained, partic-

ularly in light of the long history of the citizenship ques-

tion on the census.

JUSTICE BREYER would conclude otherwise, but only by

subordinating the Secretary’s policymaking discretion to

the Bureau’s technocratic expertise. JUSTICE BREYER’s

analysis treats the Bureau’s (pessimistic) prediction about

response rates and (optimistic) assumptions about its data

modeling abilities as touchstones of substantive reason-

ableness rather than simply evidence for the Secretary to

consider. He suggests that the Secretary should have

deferred to the Bureau or at least offered some special

justification for drawing his own inferences and adopting

his own assumptions. But the Census Act authorizes the

Secretary, not the Bureau, to make policy choices within

the range of reasonable options. And the evidence before

20 DEPARTMENT OF COMMERCE v. NEW YORK

Opinion of the Court

the Secretary hardly led ineluctably to just one reasonable

course of action. It called for value-laden decisionmaking

and the weighing of incommensurables under conditions of

uncertainty. The Secretary was required to consider the

evidence and give reasons for his chosen course of action.

He did so. It is not for us to ask whether his decision was

“the best one possible” or even whether it was “better than

the alternatives.” FERC v. Electric Power Supply Assn.,

577 U. S. ___, ___ (2016) (slip op., at 30). By second-

guessing the Secretary’s weighing of risks and benefits

and penalizing him for departing from the Bureau’s infer-

ences and assumptions, JUSTICE BREYER—like the District

Court—substitutes his judgment for that of the agency.

C

The District Court also ruled that the Secretary violated

two particular provisions of the Census Act, §6(c) and

§141(f ).

Section 6 has three subsections. Subsections (a) and (b)

authorize the Secretary to acquire administrative records

from other federal agencies and from state and local gov-

ernments. 3 Subsection (c) states:

“To the maximum extent possible and consistent

with the kind, timeliness, quality and scope of the sta-

tistics required, the Secretary shall acquire and use

information available from any source referred to in

——————

3 The full text of subsections (a) and (b) provides:

“(a) The Secretary, whenever he considers it advisable, may call upon

any other department, agency, or establishment of the Federal

Government, or of the government of the District of Columbia, for

information pertinent to the work provided for in this title.

“(b) The Secretary may acquire, by purchase or otherwise, from

States, counties, cities, or other units of government, or their instru-

mentalities, or from private persons and agencies, such copies of

records, reports, and other material as may be required for the efficient

and economical conduct of the censuses and surveys provided for in this

title.” 13 U. S. C. §6.

Cite as: 588 U. S. ____ (2019) 21

Opinion of the Court

subsection (a) or (b) of this section instead of conduct-

ing direct inquiries.” 13 U. S. C. §6(c).

The District Court held, and respondents argue, that the

Secretary failed to comply with §6(c) because he opted to

collect citizenship data using direct inquiries when it was

possible to provide DOJ with data from administrative

records alone.

At the outset, §6(c) may not even apply here. It governs

the Secretary’s choices with respect to “statistics re-

quired.” The parties have assumed that phrase refers to

census-related data that the Secretary wishes to acquire,

but it may instead refer to particular kinds of statistics

that other provisions of the Census Act actually do require

the Secretary to collect and publish. See, e.g., §41 (“The

Secretary shall collect and publish statistics concerning

[cotton and cotton production].”); §61 (“The Secretary shall

collect, collate, and publish monthly statistics concerning

[vegetable and animal oils and the like].”); §91 (“The Sec-

retary shall collect and publish quarterly financial statis-

tics of business operations, organization, practices, man-

agement, and relation to other businesses.”). If so, §6(c)

would seem to have nothing to say about the Secretary’s

collection of census-related citizenship data, which is not a

“statistic” he is “required” to collect.

Regardless, assuming the provision applies, the Secre-

tary complied with it, for essentially the same reasons

that his decision was not arbitrary and capricious. As he

explained, administrative records would not, in his judg-

ment, provide the more complete and accurate data that

DOJ sought. He thus could not, “consistent with” the kind

and quality of the “statistics required,” use administrative

records instead of asking about citizenship directly. Re-

spondents’ arguments to the contrary rehash their dis-

agreement with the Secretary’s policy judgment about

which approach would yield the most complete and accu-

22 DEPARTMENT OF COMMERCE v. NEW YORK

Opinion of the Court

rate citizenship data. For the reasons already discussed,

we may not substitute our judgment for that of the Secre-

tary here.

We turn now to §141(f ), which requires the Secretary to

report to Congress about his plans for the census. Para-

graph (1) instructs him to submit, at least three years

before the census date, a report containing his “determina-

tion of the subjects proposed to be included, and the types

of information to be compiled,” in the census. Paragraph

(2) then tells him to submit, at least two years before the

census date, a report containing his “determination of the

questions proposed to be included” in the census. Para-

graph (3) provides:

“[A]fter submission of a report under paragraph (1)

or (2) of this subsection and before the appropriate

census date, if the Secretary finds new circumstances

exist which necessitate that the subjects, types of in-

formation, or questions contained in reports so sub-

mitted be modified, [he shall submit] a report contain-

ing the Secretary’s determination of the subjects,

types of information, or questions as proposed to be

modified.”

The Secretary timely submitted his paragraph (1) report

in March 2017. It did not mention citizenship. In Decem-

ber 2017, he received DOJ’s formal request. Three months

later, in March 2018, he timely submitted his para-

graph (2) report. It did propose asking a question about

citizenship.

The District Court held that the Secretary’s failure to

mention citizenship in his March 2017 report violated

§141(f )(1) and provided an independent basis to set aside

his action. Assuming without deciding that the Secre-

tary’s compliance with the reporting requirement is for

courts—rather than Congress—to police, we disagree. The

Secretary’s March 2018 report satisfied the requirements

Cite as: 588 U. S. ____ (2019) 23

Opinion of the Court

of paragraph (3): By informing Congress that he proposed

to include a citizenship question, the Secretary necessarily

also informed Congress that he proposed to modify the

original list of subjects that he submitted in the March

2017 report. Nothing in §141(f ) suggests that the same

report cannot simultaneously fulfill the requirements of

paragraphs (2) and (3). And to the extent paragraph (3)

requires the Secretary to explain his finding of new cir-

cumstances, he did so in his March 2018 memo, which

described DOJ’s intervening request.

In any event, even if we agreed with the District Court

that the Secretary technically violated §141(f ) by submit-

ting a paragraph (2) report that doubled as a paragraph

(3) report, the error would surely be harmless in these

circumstances, where the Secretary nonetheless fully

informed Congress of, and explained, his decision. See 5

U. S. C. §706 (in reviewing agency action, “due account

shall be taken of the rule of prejudicial error”).

V

We now consider the District Court’s determination that

the Secretary’s decision must be set aside because it rested

on a pretextual basis, which the Government conceded

below would warrant a remand to the agency.

We start with settled propositions. First, in order to

permit meaningful judicial review, an agency must “dis-

close the basis” of its action. Burlington Truck Lines, Inc.

v. United States, 371 U. S. 156, 167–169 (1962) (internal

quotation marks omitted); see also SEC v. Chenery Corp.,

318 U. S. 80, 94 (1943) (“[T]he orderly functioning of the

process of review requires that the grounds upon which

the administrative agency acted be clearly disclosed and

adequately sustained.”).

Second, in reviewing agency action, a court is ordinarily

limited to evaluating the agency’s contemporaneous ex-

planation in light of the existing administrative record.

24 DEPARTMENT OF COMMERCE v. NEW YORK

Opinion of the Court

Vermont Yankee Nuclear Power Corp. v. Natural Re-

sources Defense Council, Inc., 435 U. S. 519, 549 (1978);

Camp v. Pitts, 411 U. S. 138, 142–143 (1973) (per curiam).

That principle reflects the recognition that further judicial

inquiry into “executive motivation” represents “a substan-

tial intrusion” into the workings of another branch of

Government and should normally be avoided. Arlington

Heights v. Metropolitan Housing Development Corp., 429

U. S. 252, 268, n. 18 (1977); see Overton Park, 401 U. S., at

420.

Third, a court may not reject an agency’s stated reasons

for acting simply because the agency might also have had

other unstated reasons. See Jagers v. Federal Crop Ins.

Corp., 758 F. 3d 1179, 1185–1186 (CA10 2014) (rejecting

argument that “the agency’s subjective desire to reach a

particular result must necessarily invalidate the result,

regardless of the objective evidence supporting the

agency’s conclusion”). Relatedly, a court may not set aside

an agency’s policymaking decision solely because it might

have been influenced by political considerations or

prompted by an Administration’s priorities. Agency policy-

making is not a “rarified technocratic process, unaffected

by political considerations or the presence of Presidential

power.” Sierra Club v. Costle, 657 F. 2d 298, 408 (CADC

1981). Such decisions are routinely informed by unstated

considerations of politics, the legislative process, public

relations, interest group relations, foreign relations, and

national security concerns (among others).

Finally, we have recognized a narrow exception to the

general rule against inquiring into “the mental processes

of administrative decisionmakers.” Overton Park, 401

U. S., at 420. On a “strong showing of bad faith or im-

proper behavior,” such an inquiry may be warranted and

may justify extra-record discovery. Ibid.

The District Court invoked that exception in ordering

extra-record discovery here. Although that order was

Cite as: 588 U. S. ____ (2019) 25

Opinion of the Court

premature, we think it was ultimately justified in light of

the expanded administrative record. Recall that shortly

after this litigation began, the Secretary, prodded by DOJ,

filed a supplemental memo that added new, pertinent

information to the administrative record. The memo

disclosed that the Secretary had been considering the

citizenship question for some time and that Commerce had

inquired whether DOJ would formally request reinstate-

ment of the question. That supplemental memo prompted

respondents to move for both completion of the adminis-

trative record and extra-record discovery. The District

Court granted both requests at the same hearing, agreeing

with respondents that the Government had submitted an

incomplete administrative record and that the existing

evidence supported a prima facie showing that the VRA

rationale was pretextual.

The Government did not challenge the court’s conclusion

that the administrative record was incomplete, and the

parties stipulated to the inclusion of more than 12,000

pages of internal deliberative materials as part of the

administrative record, materials that the court later held

were sufficient on their own to demonstrate pretext. The

Government did, however, challenge the District Court’s

order authorizing extra-record discovery, as well as the

court’s later orders compelling depositions of the Secretary

and of the Acting Assistant Attorney General for DOJ’s

Civil Rights Division.

We agree with the Government that the District Court

should not have ordered extra-record discovery when it

did. At that time, the most that was warranted was the

order to complete the administrative record. But the new

material that the parties stipulated should have been part

of the administrative record—which showed, among other

things, that the VRA played an insignificant role in the

decisionmaking process—largely justified such extra-

record discovery as occurred (which did not include the

26 DEPARTMENT OF COMMERCE v. NEW YORK

Opinion of the Court

deposition of the Secretary himself). We accordingly

review the District Court’s ruling on pretext in light of all

the evidence in the record before the court, including the

extra-record discovery.

That evidence showed that the Secretary was deter-

mined to reinstate a citizenship question from the time he

entered office; instructed his staff to make it happen;

waited while Commerce officials explored whether another

agency would request census-based citizenship data;

subsequently contacted the Attorney General himself to

ask if DOJ would make the request; and adopted the

Voting Rights Act rationale late in the process. In the

District Court’s view, this evidence established that the

Secretary had made up his mind to reinstate a citizenship

question “well before” receiving DOJ’s request, and did so

for reasons unknown but unrelated to the VRA. 351 F.

Supp. 3d, at 660.

The Government, on the other hand, contends that there

was nothing objectionable or even surprising in this. And

we agree—to a point. It is hardly improper for an agency

head to come into office with policy preferences and ideas,

discuss them with affected parties, sound out other agen-

cies for support, and work with staff attorneys to substan-

tiate the legal basis for a preferred policy. The record here

reflects the sometimes involved nature of Executive

Branch decisionmaking, but no particular step in the

process stands out as inappropriate or defective.

And yet, viewing the evidence as a whole, we share the

District Court’s conviction that the decision to reinstate a

citizenship question cannot be adequately explained in

terms of DOJ’s request for improved citizenship data to

better enforce the VRA. Several points, considered to-

gether, reveal a significant mismatch between the decision

the Secretary made and the rationale he provided.

The record shows that the Secretary began taking steps

to reinstate a citizenship question about a week into his

Cite as: 588 U. S. ____ (2019) 27

Opinion of the Court

tenure, but it contains no hint that he was considering

VRA enforcement in connection with that project. The

Secretary’s Director of Policy did not know why the Secre-

tary wished to reinstate the question, but saw it as his

task to “find the best rationale.” Id., at 551. The Director

initially attempted to elicit requests for citizenship data

from the Department of Homeland Security and DOJ’s

Executive Office for Immigration Review, neither of which

is responsible for enforcing the VRA. After those attempts

failed, he asked Commerce staff to look into whether the

Secretary could reinstate the question without receiving a

request from another agency. The possibility that DOJ’s

Civil Rights Division might be willing to request citizen-

ship data for VRA enforcement purposes was proposed by

Commerce staff along the way and eventually pursued.

Even so, it was not until the Secretary contacted the

Attorney General directly that DOJ’s Civil Rights Division

expressed interest in acquiring census-based citizenship

data to better enforce the VRA. And even then, the record

suggests that DOJ’s interest was directed more to helping

the Commerce Department than to securing the data. The

December 2017 letter from DOJ drew heavily on contribu-

tions from Commerce staff and advisors. Their influence

may explain why the letter went beyond a simple entreaty

for better citizenship data—what one might expect of a

typical request from another agency—to a specific request

that Commerce collect the data by means of reinstating a

citizenship question on the census. Finally, after sending

the letter, DOJ declined the Census Bureau’s offer to

discuss alternative ways to meet DOJ’s stated need for

improved citizenship data, further suggesting a lack of

interest on DOJ’s part.

Altogether, the evidence tells a story that does not

match the explanation the Secretary gave for his decision.

In the Secretary’s telling, Commerce was simply acting on

a routine data request from another agency. Yet the

28 DEPARTMENT OF COMMERCE v. NEW YORK

Opinion of the Court

materials before us indicate that Commerce went to great

lengths to elicit the request from DOJ (or any other willing

agency). And unlike a typical case in which an agency

may have both stated and unstated reasons for a decision,

here the VRA enforcement rationale—the sole stated rea-

son—seems to have been contrived.

We are presented, in other words, with an explanation

for agency action that is incongruent with what the record

reveals about the agency’s priorities and decisionmaking

process. It is rare to review a record as extensive as the

one before us when evaluating informal agency action—

and it should be. But having done so for the sufficient

reasons we have explained, we cannot ignore the discon-

nect between the decision made and the explanation given.

Our review is deferential, but we are “not required to

exhibit a naiveté from which ordinary citizens are free.”

United States v. Stanchich, 550 F. 2d 1294, 1300 (CA2

1977) (Friendly, J.). The reasoned explanation require-

ment of administrative law, after all, is meant to ensure

that agencies offer genuine justifications for important

decisions, reasons that can be scrutinized by courts and

the interested public. Accepting contrived reasons would

defeat the purpose of the enterprise. If judicial review is to

be more than an empty ritual, it must demand something

better than the explanation offered for the action taken in

this case.

In these unusual circumstances, the District Court was

warranted in remanding to the agency, and we affirm that

disposition. See Florida Power & Light Co. v. Lorion, 470

U. S. 729, 744 (1985). We do not hold that the agency

decision here was substantively invalid. But agencies

must pursue their goals reasonably. Reasoned deci-

sionmaking under the Administrative Procedure Act calls

for an explanation for agency action. What was provided

here was more of a distraction.

Cite as: 588 U. S. ____ (2019) 29

Opinion of the Court

* * *

The judgment of the United States District Court for the

Southern District of New York is affirmed in part and

reversed in part, and the case is remanded for further

proceedings consistent with this opinion.

It is so ordered.

Cite as: 588 U. S. ____ (2019) 1

Opinion of THOMAS, J.

SUPREME COURT OF THE UNITED STATES

_________________

No. 18–966

_________________

DEPARTMENT OF COMMERCE, ET AL., PETITIONERS

v. NEW YORK, ET AL.

ON WRIT OF CERTIORARI BEFORE JUDGMENT TO THE UNITED

STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

[June 27, 2019]

JUSTICE THOMAS, with whom JUSTICE GORSUCH and

JUSTICE KAVANAUGH join, concurring in part and dissent-

ing in part.

In March 2018, the Secretary of Commerce exercised his

broad discretion over the administration of the decennial

census to resume a nearly unbroken practice of asking a

question relating to citizenship. Our only role in this case

is to decide whether the Secretary complied with the law

and gave a reasoned explanation for his decision. The

Court correctly answers these questions in the affirmative.

Ante, at 11–23. That ought to end our inquiry.

The Court, however, goes further. For the first time

ever, the Court invalidates an agency action solely because

it questions the sincerity of the agency’s otherwise ade-

quate rationale. Echoing the din of suspicion and distrust

that seems to typify modern discourse, the Court declares

the Secretary’s memorandum “pretextual” because, “view-

ing the evidence as a whole,” his explanation that includ-

ing a citizenship question on the census would help en-

force the Voting Rights Act (VRA) “seems to have been

contrived.” Ante, at 23, 26, 28. The Court does not hold

that the Secretary merely had additional, unstated rea-

sons for reinstating the citizenship question. Rather, it

holds that the Secretary’s stated rationale did not factor at

all into his decision.

2 DEPARTMENT OF COMMERCE v. NEW YORK

Opinion of THOMAS, J.

The Court’s holding reflects an unprecedented departure

from our deferential review of discretionary agency deci-

sions. And, if taken seriously as a rule of decision, this

holding would transform administrative law. It is not

difficult for political opponents of executive actions to

generate controversy with accusations of pretext, deceit,

and illicit motives. Significant policy decisions are regu-

larly criticized as products of partisan influence, interest-

group pressure, corruption, and animus. Crediting these

accusations on evidence as thin as the evidence here could

lead judicial review of administrative proceedings to de-

volve into an endless morass of discovery and policy dis-

putes not contemplated by the Administrative Procedure

Act (APA).

Unable to identify any legal problem with the Secre-

tary’s reasoning, the Court imputes one by concluding that

he must not be telling the truth. The Court therefore up-

holds the decision of the District Court—which, in turn, was

transparently based on the application of an administration-

specific standard. App. to Pet. for Cert. 527a (crediting

respondents’ allegations that “the current Depart-

ment of Justice has shown little interest in enforcing the”

VRA (emphasis added)).

The law requires a more impartial approach. Even

assuming we are authorized to engage in the review un-

dertaken by the Court—which is far from clear—we have

often stated that courts reviewing agency action owe the

Executive a “presumption of regularity.” Citizens to Pre-

serve Overton Park, Inc. v. Volpe, 401 U. S. 402, 415

(1971). The Court pays only lipservice to this principle.

But, the evidence falls far short of supporting its decision.

The Court, I fear, will come to regret inventing the princi-

ples it uses to achieve today’s result. I respectfully dissent

from Part V of the opinion of the Court. 1

——————

1 JUSTICE KAVANAUGH and I join Parts I, II, III, and IV of the opinion

Cite as: 588 U. S. ____ (2019) 3

Opinion of THOMAS, J.

I

As the Court explains, federal law directs the Secretary

of Commerce to “take a decennial census.” 13 U. S. C.

§141(a); see U. S. Const., Art. I, §2, cl. 3; Amdt. XIV, §2;

ante, at 1–2. The discretion afforded the Secretary is

extremely broad. Subject only to constitutional limitations

and a handful of inapposite statutory requirements, the

Secretary is expressly authorized to “determine the inquir-

ies” on the census questionnaire and to conduct the census

“in such form and content as he may determine.” §§5,

141(a); see ante, at 14–16, 20–23. 2 Prior census question-

naires have included questions ranging from sex, age, and

race to commute, education, and radio ownership. And

between 1820 and 2010, every decennial census question-

naire but one asked some segment of the population a

question related to citizenship. The 2010 census was the

first since 1840 that did not include any such question.

In March 2018, the Secretary issued a memorandum

reinstating a citizenship question on the 2020 census. He

explained that the Department of Justice (DOJ) had for-

mally requested reinstatement of the question because the

data obtained would help enforce §2 of the VRA. He fur-

ther explained that the question had been well tested in

light of its extensive previous use, that he had consulted

with the Census Bureau on the proposal, and that his final

——————

of the Court. JUSTICE GORSUCH joins Parts I, II, III, IV–B, and IV–C.

2 JUSTICE ALITO has made a strong argument that the specific decision

at issue here—whether to include a citizenship question on the cen-

sus—is a matter “committed to agency discretion by law.” 5 U. S. C.

§701(a)(2); see post, at 3 (opinion concurring in part and dissenting in

part). As he explains, the Secretary’s decision plainly falls within the

scope of the Secretary’s constitutional authority, does not implicate any

statutory prohibition, and is among the “inquiries” and “content[s]” of

the census that the Secretary is expressly directed to “determine” for

himself. §§5, 141(a); see post, at 5–15. Nevertheless, I assume, for the

purpose of this opinion, that the Secretary’s decision is subject to

judicial review.

4 DEPARTMENT OF COMMERCE v. NEW YORK

Opinion of THOMAS, J.

decision incorporated feedback from the Bureau. He

recognized that staff at the Bureau believed that better

data could be obtained through modeling and reliance on

existing records, but he disagreed with that assessment,

explaining that the data was inconclusive and that he

thought it preferable to ask the question directly of the

entire population. Respondents brought suit, seeking

judicial review of the Secretary’s decision under the APA,

5 U. S. C. §706.

II

As relevant here, the APA requires courts to “hold un-

lawful and set aside” agency action that is “arbitrary,

capricious, an abuse of discretion, or otherwise not in

accordance with law.” §706(2)(A). We have emphasized

that “[r]eview under the arbitrary and capricious standard

is deferential.” National Assn. of Home Builders v. De-

fenders of Wildlife, 551 U. S. 644, 658 (2007); see Glick-

man v. Wileman Brothers & Elliott, Inc., 521 U. S. 457,

466, n. 8 (1997). It requires the reviewing court to deter-

mine whether the agency “ ‘examine[d] the relevant data

and articulate[d] a satisfactory explanation for its action.’ ”

FCC v. Fox Television Stations, Inc., 556 U. S. 502, 513

(2009). We have described this as a “ ‘narrow’ standard of

review” under which the reviewing court cannot “ ‘substi-

tute its judgment for that of the agency,’ and should ‘up-

hold a decision of less than ideal clarity if the agency’s

path may reasonably be discerned.’ ” Id., at 513–514

(citation omitted); accord, Motor Vehicle Mfrs. Assn. of

United States, Inc. v. State Farm Mut. Automobile Ins. Co.,

463 U. S. 29, 43 (1983). 3

——————

3 Deferential review of the agency’s discretionary choices and reason-

ing under the arbitrary-and-capricious standard stands in marked

contrast to a court’s plenary review of the agency’s interpretation and

application of the law. See §§706(A)–(D) (court must review agency

action to ensure that it complies with all “constitutional,” “statutory,”

Cite as: 588 U. S. ____ (2019) 5

Opinion of THOMAS, J.

Part IV–B of the opinion of the Court correctly applies

this standard to conclude that the Secretary’s decision

survives ordinary arbitrary-and-capricious review. That

holding should end our inquiry.

But the opinion continues. Acknowledging that “no

particular step” in the proceedings here “stands out as

inappropriate or defective,” even after reviewing “all the

evidence in the record . . . , including the extra-record

discovery,” ante, at 26, the Court nevertheless agrees with

the District Court that the Secretary’s rationale for rein-

stating the citizenship question was “pretextual—that is,

that the real reason for his decision was something other

than the sole reason he put forward in his memorandum,

namely enhancement of DOJ’s VRA enforcement efforts.”

351 F. Supp. 3d 502, 660 (SDNY 2019); see ante, at 28.

According to the Court, something just “seems” wrong.

Ibid.

This conclusion is extraordinary. The Court engages in

an unauthorized inquiry into evidence not properly before

us to reach an unsupported conclusion. Moreover, each

step of the inquiry offends the presumption of regularity

we owe the Executive. The judgment of the District Court

should be reversed.

A

Section 706(2) of the APA contemplates review of the

administrative “record” to determine whether an agency’s

“action, findings, and conclusions” satisfy six specified

standards. See §§706(2)(A)–(F). None instructs the Court

to inquire into pretext. Consistent with this statutory

text, we have held that a court is “ordinarily limited to

evaluating the agency’s contemporaneous explanation in

light of the existing administrative record.” Ante, at 23

——————

and “procedur[al]” requirements, and is otherwise “in accordance with

law”).

6 DEPARTMENT OF COMMERCE v. NEW YORK

Opinion of THOMAS, J.

(citing Vermont Yankee Nuclear Power Corp. v. Natural

Resources Defense Council, Inc., 435 U. S. 519, 549 (1978));

see SEC v. Chenery Corp., 318 U. S. 80, 87 (1943) (“The

grounds upon which an administrative order must be

judged are those upon which the record discloses that its

action was based”). If an agency’s stated findings and

conclusions withstand scrutiny, the APA does not permit a

court to set aside the decision solely because the agency

had “other unstated reasons” for its decision, such as

“political considerations” or the “Administration’s priori-

ties.” Ante, at 24.

Unsurprisingly, then, this Court has never held an

agency decision arbitrary and capricious on the ground

that its supporting rationale was “pretextual.” Nor has it

previously suggested that this was even a possibility.

Under “settled propositions” of administrative law, ante,

at 23, pretext is virtually never an appropriate or relevant

inquiry for a reviewing court to undertake.

Respondents conceptualize pretext as a subset of “arbi-

trary and capricious” review. It is far from clear that they

are correct. But even if they were, an agency action is not

arbitrary or capricious merely because the decisionmaker

has other, unstated reasons for the decision. Ante, at 24.

Nor is an agency action arbitrary and capricious merely

because the decisionmaker was “inclined” to accomplish it

before confirming that the law and facts supported that

inclination. In re Dept. of Commerce, 586 U. S. ___, ___

(2018) (GORSUCH, J., concurring in part and dissenting in

part) (slip op., at 2).

Accordingly, even under respondents’ approach, a show-

ing of pretext could render an agency action arbitrary and

capricious only in the infinitesimally small number of

cases in which the administrative record establishes that

an agency’s stated rationale did not factor at all into the

decision, thereby depriving the action of an adequate

Cite as: 588 U. S. ____ (2019) 7

Opinion of THOMAS, J.

supporting rationale. 4 This showing is extremely difficult

to make because the administrative record will rarely, if

ever, contain evidence sufficient to show that an agency’s

stated rationale did not actually factor into its decision.

And we have stated that a “strong showing of bad faith or

improper behavior” is necessary to venture beyond the

agency’s “administrative findings” and inquire into “the

mental processes of administrative decisionmakers.”

Overton Park, 401 U. S., at 420. 5 We have never before

found Overton Park’s exception satisfied, much less invali-

dated an agency action based on “pretext.”

Undergirding our arbitrary-and-capricious analysis is

our longstanding precedent affording the Executive a

“presumption of regularity.” Id., at 415; see United States

v. Chemical Foundation, Inc., 272 U. S. 1, 14–15 (1926).

This presumption reflects respect for a coordinate branch

of government whose officers not only take an oath to

——————

4 We do not have before us a claim that information outside the ad-

ministrative record calls into question the legality of an agency action

based on an unstated, unlawful bias or motivation (e.g., a claim of

religious discrimination under the Free Exercise Clause). But to the

extent such a claim is viable, the analysis would have nothing to do

with the arbitrary-and-capricious review pressed by respondents. See

§§706(2)(A)–(C) (addressing agency actions that violate “constitutional”

or “statutory” requirements, or that “otherwise [are] not in accordance

with law”).

5 Insofar as Overton Park authorizes an exception to review on the

administrative record, it has been criticized as having “no textual

grounding in the APA” and as “created by the Court, without citation or

explanation, to facilitate Article III review.” Gavoor & Platt, Adminis-

trative Records and the Courts, 67 U. Kan. L. Rev. 1, 44 (2018); see id.,

at 22 (further arguing that the exception was “neither presented by the

facts of the case nor briefed by the parties”). The legitimacy and scope

of the exception—which by its terms contemplates only “administrative

officials who participated in the decision . . . giv[ing] testimony explain-

ing their action,” Overton Park, 401 U. S., at 420—is an important

question that may warrant future consideration. But because the

Court’s holding is incorrect regardless of the validity of the Overton

Park exception, I will apply it here.

8 DEPARTMENT OF COMMERCE v. NEW YORK

Opinion of THOMAS, J.

support the Constitution, as we do, Art. VI, but also are

charged with “faithfully execut[ing]” our laws, Art. II, §3.

See United States v. Morgan, 313 U. S. 409, 422 (1941)

(presumption of regularity ensures that the “integrity of

the administrative process” is appropriately respected). In

practice, then, we give the benefit of the doubt to the

agency.

B

The Court errs at the outset by proceeding beyond the

administrative record to evaluate pretext. Respondents

have not made a “strong showing of bad faith or improper

behavior.” Overton Park, supra, at 420.

The District Court’s initial order granting extra-record

discovery relied on four categories of evidence:

“evidence that [the Secretary] was predisposed to re-

instate the citizenship question when he took office;

that the [DOJ] hadn’t expressed a desire for more de-

tailed citizenship data until the Secretary solicited its

view; that he overruled the objections of his agency’s

career staff; and that he declined to order more test-

ing of the question given its long history.” Dept. of

Commerce, 586 U. S., at ___ (slip op., at 2).

None of this comes close to showing bad faith or improper

behavior. Indeed, there is nothing even “unusual about a

new cabinet secretary coming to office inclined to favor a

different policy direction, soliciting support from other

agencies to bolster his views, disagreeing with staff, or

cutting through red tape.” Ibid. Today all Members of the

Court who reach the question agree that the District

Court abused its discretion in ordering extra-record dis-

covery based on this evidence. Ante, at 25 (“We agree with

the Government that the District Court should not have

ordered extra-record discovery when it did”).

Nevertheless, the Court excuses the error because, in its

Cite as: 588 U. S. ____ (2019) 9

Opinion of THOMAS, J.

view, “the new material that the parties [later] stipulated

should have been part of the administrative record . . .

largely justified such extra-record discovery as occurred.”

Ibid. Given the requirement that respondents make a

“strong showing” of bad faith, one would expect the Court

to identify which “new material” supported such a show-

ing. It does not. Nor does the Court square its suggestion

that some of the extra-record discovery was not “justified”

with its consideration of “all . . . the extra-record discov-

ery.” Ante, at 25–26. Regardless, I assume that the Court

has in mind the administrative-record materials that the

District Court would later rely on to establish pretext:

“evidence that [the Secretary] had made the decision

to add the citizenship question well before DOJ re-

quested its addition in December 2017; the absence of

any mention, at all, of VRA enforcement in the discus-

sions of adding the question that preceded the [DOJ]

Letter; unsuccessful attempts by Commerce Depart-

ment staff to shop around for a request by another

agency regarding citizenship data; and [the Secre-

tary’s] personal outreach to Attorney General Ses-

sions, followed by the [DOJ] Letter; not to mention the

conspicuous procedural irregularities that accompa-

nied the decision to add the question.” 351 F. Supp.

3d, at 661 (citations omitted).

This evidence fails to make a strong showing of bad

faith or improper behavior. Taken together, it proves at

most that the Secretary was predisposed to add a citizen-

ship question to the census and took steps to achieve that

end before settling on the VRA rationale he included in his

memorandum. Perhaps he had reasons for adding the

citizenship question other than the VRA, but by the

Court’s own telling, that does not amount to evidence of

bad faith or improper behavior. Ante, at 24; see Dept. of

Commerce, supra, at ___ (slip op., at 2).

10 DEPARTMENT OF COMMERCE v. NEW YORK

Opinion of THOMAS, J.

The Court thus errs in relying on materials outside the

record to support its holding. And the Court does not

claim that the evidence in the administrative record alone

would prove that the March 2018 memorandum was a

pretext. Given the presumption of regularity, the evidence

discussed above falls far short of establishing that the

VRA rationale did not factor at all into the Secretary’s

decision.

C

Even if it were appropriate for the Court to rely on

evidence outside the administrative record, that evidence

still fails to establish pretext. None of the evidence cited

by the Court or the District Court comes close to showing

that the Secretary’s stated rationale—that adding a citi-

zenship question to the 2020 census questionnaire would

“provide . . . data that are not currently available” and

“permit more effective enforcement of the [VRA],” App. to

Pet. for Cert. 548a—did not factor at all into his decision.

Once again, the evidence cited by the Court suggests at

most that the Secretary had “other unstated reasons” for

reinstating the citizenship question. Ante, at 24. For

example, the Court states that the Secretary’s Director of

Policy “initially attempted to elicit requests for citizenship

data from the Department of Homeland Security and

DOJ’s Executive Office for Immigration Review.” Ante, at

27. But this hardly shows pretext. It simply suggests that

the Director believed that citizenship information could be

useful in tackling problems related to national security

and illegal immigration—a view that would also explain

why the Secretary might not have been “considering VRA

enforcement” early on. Ibid.; see also American Commu-

nity Survey, Why We Ask: Place of Birth, Citizenship and

Year of Entry (2016) (explaining that inquiries about

“place of birth, citizenship, and year of entry” provide

statistics that are “essential for agencies and policy mak-

Cite as: 588 U. S. ____ (2019) 11

Opinion of THOMAS, J.

ers setting and evaluating immigration policies and laws,

understanding how different immigrant groups are assim-

ilated, and monitoring against discrimination”), https://

www2 . census . gov / programs - surveys / acs / about / qbyqfact /

2016/Citizenship.pdf (as last visited June 25, 2019).

The Court emphasizes that the VRA rationale for the

citizenship question originated in the Department of

Commerce, and suggests that DOJ officials unthinkingly

fell in line after the Attorney General was looped into the

process. See ante, at 27. But the Court ignores that the

letter was drafted by the then-Acting Assistant Attorney

General for Civil Rights and reviewed by five other DOJ

attorneys, including the Chief of the DOJ’s Voting Section.

351 F. Supp. 3d, at 554–556. Given the DOJ’s multilayer

review process and its explanation for requesting citizen-

ship data, the Court’s suggestion that the DOJ’s letter was

inadequately vetted or improperly “influence[d]” by the

Department of Commerce is entirely unsupported. Ante,

at 27. In any event, none of this suggests, much less

proves, that the Secretary harbored an unstated belief

that adding the citizenship question would not help en-

force the VRA, or that the VRA rationale otherwise did not

factor at all into his decision. It simply suggests that a

number of executive officials agreed that adding a citizen-

ship question would support VRA enforcement.

The Court’s other evidence is even further afield. The

Court thinks it telling that the DOJ’s letter included “a

specific request that Commerce collect the [citizenship]

data by means of reinstating a citizenship question on the

census,” rather than a more open-ended “entreaty for

better citizenship data.” Ibid. I do not understand how

the specificity of the DOJ’s letter bears on whether the

Secretary’s rationale was pretextual—particularly since

the letter specifically explained why “census questionnaire

data regarding citizenship, if available, would be more

appropriate for use in redistricting and in [VRA] litiga-

12 DEPARTMENT OF COMMERCE v. NEW YORK

Opinion of THOMAS, J.

tion” than existing data. App. to Pet. for Cert. 568a; see

id., at 567a–568a. Unless the Court is now suggesting

that agency correspondence must comply with the Court’s

subjective, unsupported view of what “might” constitute a

“typical request from another agency,” ante, at 27, the

specificity of the DOJ’s letter is irrelevant. The Court also

points to the DOJ’s decision not to meet with the Census

Bureau “to discuss alternative ways to meet DOJ’s stated

need for improved citizenship data.” Ibid. But the Court

does not explain how the DOJ’s refusal bears on the Secre-

tary’s rationale. Besides, it is easy to understand why

DOJ officials would not be interested in meeting with the

Census Bureau. The meeting would have been with ca-

reer employees whose acknowledged purpose was to talk

the DOJ out of its request. See 351 F. Supp. 3d, at 557.

Having already considered the issue and explained the

rationale behind the request, it seems at least plausible

that the DOJ officials believed such a meeting would be

unproductive.

In short, the evidence cited by the Court establishes, at

most, that leadership at both the Department of Com-

merce and the DOJ believed it important—for a variety of

reasons—to include a citizenship question on the census.

The Court also fails to give credit where it is due. The

Secretary initiated this process inclined to favor what he

called “Option B”—that is, simply “add[ing] a citizenship

question to the decennial census.” App. to Pet. for Cert.

552a. But the Census Bureau favored “Option C”—relying

solely on “administrative records” to supply the infor-

mation needed by the DOJ. Id., at 554a. The Secretary

considered this view and found it a “potentially appealing

solution,” ibid., but concluded that it had shortcomings.

Rather than revert to his original inclination, however, he

“asked the Census Bureau to develop a fourth alternative,

Option D, which would combine Options B and C.” Id., at

555a. And he settled on that solution. Whatever one

Cite as: 588 U. S. ____ (2019) 13

Opinion of THOMAS, J.

thinks of the Secretary’s choice, his willingness to change

his mind in light of the Bureau’s feedback belies the idea

that his rationale or decisionmaking process was a

pretext.

The District Court’s lengthy opinion pointed to other

facts that, in its view, supported a finding of pretext. 351

F. Supp. 3d, at 567–572, 660–664 (discussing the state-

ments, e-mails, acts, and omissions of numerous people

involved in the process). I do not deny that a judge pre-

disposed to distrust the Secretary or the administration

could arrange those facts on a corkboard and—with a jar

of pins and a spool of string—create an eye-catching con-

spiracy web. Cf. id., at 662 (inferring “from the various

ways in which [the Secretary] and his aides acted like

people with something to hide that they did have some-

thing to hide”). But the Court does not rely on this evi-

dence, and rightly so: It casts no doubt on whether the

Secretary’s stated rationale factored into his decision. The

evidence suggests, at most, that the Secretary had multi-

ple reasons for wanting to include the citizenship question

on the census.

Finally, if there could be any doubt about this conclu-

sion, the presumption of regularity resolves it. Where

there are equally plausible views of the evidence, one of

which involves attributing bad faith to an officer of a

coordinate branch of Government, the presumption com-

pels giving the benefit of the doubt to that officer.

III

The Court’s erroneous decision in this case is bad

enough, as it unjustifiably interferes with the 2020 census.

But the implications of today’s decision are broader. With

today’s decision, the Court has opened a Pandora’s box of

pretext-based challenges in administrative law.

Today’s decision marks the first time the Court has ever

invalidated an agency action as “pretextual.” Having

14 DEPARTMENT OF COMMERCE v. NEW YORK

Opinion of THOMAS, J.

taken that step, one thing is certain: This will not be the

last time it is asked to do so. Virtually every significant

agency action is vulnerable to the kinds of allegations the

Court credits today. These decisions regularly involve

coordination with numerous stakeholders and agencies,

involvement at the highest levels of the Executive Branch,

opposition from reluctant agency staff, and—perhaps most

importantly—persons who stand to gain from the action’s

demise. Opponents of future executive actions can be

expected to make full use of the Court’s new approach.

The 2015 “Open Internet Order” provides a case in

point. In 2015, the Federal Communications Commission

(FCC) adopted a controversial order reclassifying broad-

band Internet access service as a “telecommunications

service” subject to regulation under Title II of the Com-

munications Act. See In re Protecting and Promoting the

Open Internet, 30 FCC Rcd. 5601, 5618 (2015). According

to a dissenting Commissioner, the FCC “flip-flopp[ed]” on

its previous policy not because of a change in facts or legal

understanding, but based on “one reason and one reason

alone. President Obama told us to do so.” Id., at 5921

(statement of Comm’r Pai). His view was supported by a

2016 congressional Report in which Republican Senate

staff concluded that “the FCC bent to the political pres-

sure of the White House” and “failed to live up to stand-

ards of transparency.” Majority Staff Report, Senate

Committee on Homeland Security and Governmental

Affairs, Regulating the Internet: How the White House

Bowled Over FCC Independence, 114th Cong., 1st Sess.,

29 (Comm. Print 2016). The Report cited evidence strik-

ingly similar to that relied upon by the Court here—

including agency-initiated “meetings with certain outside

groups to support” the new result, id., at 3; “apparen[t] . . .

concern from the career staff that there was insufficient

notice to the public and affected stakeholders,” id., at 4;

and “regula[r] communicatio[n]” between the FCC Chair-

Cite as: 588 U. S. ____ (2019) 15

Opinion of THOMAS, J.

man and “presidential advisors,” id., at 25.

Under the malleable standard applied by the Court

today, a serious case could be made that the Open Internet

Order should have been invalidated as “pretextual,” re-

gardless of whether any “particular step in the process

stands out as inappropriate or defective.” Ante, at 26. It

is enough, according to the Court, that a judge believes

that the ultimate rationale “seems to have been contrived”

when the evidence is considered “as a whole.” Ante, at

26, 28.

Now that the Court has opened up this avenue of attack,

opponents of executive actions have strong incentives to

craft narratives that would derail them. Moreover, even if

the effort to invalidate the action is ultimately unsuccess-

ful, the Court’s decision enables partisans to use the

courts to harangue executive officers through depositions,

discovery, delay, and distraction. The Court’s decision

could even implicate separation-of-powers concerns insofar

as it enables judicial interference with the enforcement of

the laws.

In short, today’s decision is a departure from traditional

principles of administrative law. Hopefully it comes to be

understood as an aberration—a ticket good for this day

and this train only.

* * *

Because the Secretary’s decision to reinstate a citizen-

ship question on the 2020 census was legally sound and a

reasoned exercise of his broad discretion, I respectfully

dissent from Part V of the opinion of the Court.

Cite as: 588 U. S. ____ (2019) 1

Opinion of BREYER, J.

SUPREME COURT OF THE UNITED STATES

_________________

No. 18–966

_________________

DEPARTMENT OF COMMERCE, ET AL., PETITIONERS

v. NEW YORK, ET AL.

ON WRIT OF CERTIORARI BEFORE JUDGMENT TO THE UNITED

STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

[June 27, 2019]

JUSTICE BREYER, with whom JUSTICE GINSBURG,

JUSTICE SOTOMAYOR, and JUSTICE KAGAN join, concurring

in part and dissenting in part.

I join Parts I, II, IV–A, and V of the Court’s opinion

(except as otherwise indicated in this opinion). I dissent,

however, from the conclusion the Court reaches in Part

IV–B. To be more specific, I agree with the Court that the

Secretary of Commerce provided a pretextual reason for

placing a question about citizenship on the short-form

census questionnaire and that a remand to the agency is

appropriate on that ground. But I write separately be-

cause I also believe that the Secretary’s decision to add the

citizenship question was arbitrary and capricious and

therefore violated the Administrative Procedure Act

(APA).

There is no serious dispute that adding a citizenship

question would diminish the accuracy of the enumeration

of the population—the sole constitutional function of the

census and a task of great practical importance. The

record demonstrates that the question would likely cause

a disproportionate number of noncitizens and Hispanics to

go uncounted in the upcoming census. That, in turn,

would create a risk that some States would wrongfully

lose a congressional representative and funding for a host

of federal programs. And, the Secretary was told, the

2 DEPARTMENT OF COMMERCE v. NEW YORK

Opinion of BREYER, J.

adverse consequences would fall most heavily on minority

communities. The Secretary decided to ask the question

anyway, citing a need for more accurate citizenship data.

But the evidence indicated that asking the question would

produce citizenship data that is less accurate, not more.

And the reason the Secretary gave for needing better

citizenship data in the first place—to help enforce the

Voting Rights Act of 1965—was not convincing.

In short, the Secretary’s decision to add a citizenship

question created a severe risk of harmful consequences,

yet he did not adequately consider whether the question

was necessary or whether it was an appropriate means of

achieving his stated goal. The Secretary thus failed to

“articulate a satisfactory explanation” for his decision,

“failed to consider . . . important aspect[s] of the problem,”

and “offered an explanation for [his] decision that runs

counter to the evidence,” all in violation of the APA. Motor

Vehicle Mfrs. Assn. of United States, Inc. v. State Farm

Mut. Automobile Ins. Co., 463 U. S. 29, 43 (1983). These

failures, in my view, risked undermining public confidence

in the integrity of our democratic system itself. I would

therefore hold that the Secretary’s decision—whether

pretextual or not—was arbitrary, capricious, and an abuse

of discretion.

I

A

Three sets of laws determine the legal outcome of this

case. First, the Constitution requires an “actual Enumer-

ation” of the “whole number of persons in each State”

every 10 years. Art. I, §2, cl. 3; Amdt. 14, §2. It does so in

order to “provide a basis for apportioning representatives

among the states in the Congress.” Baldrige v. Shapiro,

455 U. S. 345, 353 (1982); see also Art. I, §2, cl. 3. The

inclusion of this provision in the Constitution itself under-

scores the importance of conducting an accurate census.

Cite as: 588 U. S. ____ (2019) 3

Opinion of BREYER, J.

See Utah v. Evans, 536 U. S. 452, 478 (2002) (recognizing

“a strong constitutional interest in [the] accuracy” of the

enumeration).

Second, the Census Act contains two directives that

constrain the Secretary’s ability to add questions to the

census. Section 195 says that the Secretary “shall, if he

considers it feasible,” authorize the use of statistical “sam-

pling” in collecting demographic information. That means

the Secretary must, if feasible, obtain demographic infor-

mation through a survey sent to a sample of households,

rather than through the short-form census questionnaire

to which every household must respond. The other rele-

vant provision, §6(c), says that “[t]o the maximum extent

possible and consistent with the kind, timeliness, quality

and scope of the statistics required, the Secretary shall

acquire and use information available” from administra-

tive sources “instead of conducting direct inquiries.”

(Emphasis added.) These provisions, taken together,

reflect a congressional preference for keeping the short

form short, so that it does not burden recipients and

thereby discourage them from responding.

Third, the APA prohibits administrative agencies from

making choices that are “arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with law.” 5

U. S. C. §706(2)(A). We have said that courts, in applying

this provision, must decide “whether the decision was

based on a consideration of the relevant factors and

whether there has been a clear error of judgment.” Citi-

zens to Preserve Overton Park, Inc. v. Volpe, 401 U. S. 402,

416 (1971). The agency must have “examine[d] the rele-

vant data and articulate[d] a satisfactory explanation for

its action[,] including a ‘rational connection between the

facts found and the choice made.’ ” State Farm, 463 U. S.,

at 43. An agency ordinarily fails to meet this standard if

it has “failed to consider an important aspect of the prob-

lem, offered an explanation for its decision that runs

4 DEPARTMENT OF COMMERCE v. NEW YORK

Opinion of BREYER, J.

counter to the evidence before the agency, or is so implau-

sible that it could not be ascribed to a difference in view or

the product of agency expertise.” Ibid.

Courts do not apply these principles of administrative

law mechanically. Rather, they take into account, for

example, the nature and importance of the particular

decision, the relevance and importance of missing infor-

mation, and the inadequacies of a particular explanation

in light of their importance. The Federal Government

makes tens of thousands, perhaps millions, of administra-

tive decisions each year. And courts would be wrong to

expect or insist upon administrative perfection. But here,

the Enumeration Clause, the Census Act, and the nature

of the risks created by the agency’s decision all make clear

that the decision before us is highly important to the

proper functioning of our democratic system. It is there-

fore particularly important that courts here not overlook

an agency’s (1) failure to consider serious risks of harm,

(2) failure to explain its refusal to minimize those risks, or

(3) failure to link its conclusion to available evidence. My

view, like that of the District Court, is that the agency

here failed on all three counts.

B

A brief history of how the census has worked over the

years will help the reader understand some of the short-

comings of the Secretary’s decisionmaking process. The

Framers wrote into the Constitution a mandate to conduct

an “actual Enumeration” of the population every 10 years.

Art. I, §2, cl. 3. They did so for good reason. The purpose

of the census is to “provide a basis for apportioning repre-

sentatives among the states in the Congress,” Baldrige,

455 U. S., at 353, ensuring that “comparative state politi-

cal power in the House . . . reflect[s] comparative popula-

tion,” Evans, 536 U. S., at 477. The Framers required an

actual count of every resident to “limit political chicanery”

Cite as: 588 U. S. ____ (2019) 5

Opinion of BREYER, J.

and to prevent the census count from being “skewed for

political . . . purposes.” Id., at 500 (THOMAS, J., concurring

in part and dissenting in part).

Throughout most of the Nation’s history, the Federal

Government used enumerators, often trained census

takers, to conduct the census by going door to door. The

enumerators would ask a host of questions, including

place of birth, citizenship, and others. But after the 1950

census, the Bureau began to change its approach. Post-

census studies revealed that the census had failed to count

more than 5 million people and that the undercount dis-

proportionately affected members of minority groups. See

M. Anderson, The American Census: A Social History

201−202 (1988); Brief for Historians and Social Scientists

as Amici Curiae 15. Studies showed that statistical

sampling would produce higher quality data. Anderson,

American Census, at 201.

Beginning with the 1960 census, the Bureau conse-

quently divided its questioning into a short form and a

long form. The short form contained a list of questions—a

short list—that the census would ask of every household.

That list included basic demographic questions like sex,

age, race, and marital status. The short form did not

include, and has never included, a question about citizen-

ship. See ibid.; Dept. of Commerce, U. S. Census Bureau,

Measuring America: The Decennial Censuses From 1790

to 2000, p. 128 (2002). By way of contrast, the long form

set forth a host of questions that would be asked of only a

sample of households. In 1960, the long form was sent to

one in every four households; in subsequent years, it was

sent to approximately one in every six. See 351 F. Supp.

3d 502, 520 (SDNY 2019). And it was more recently re-

placed by the American Community Survey (ACS), which

is sent to approximately 1 in 38 households each year.

The long form (and now the ACS) has often included a

question about citizenship.

6 DEPARTMENT OF COMMERCE v. NEW YORK

Opinion of BREYER, J.

In 1970, the Census Bureau made another important

change to the census. It significantly reduced its reliance

upon in-person enumerators. See Anderson, supra, at 206.

Instead, it sent nearly all households a questionnaire by

mail. Most households received the short form, and a

small sample received the long form. Instructions on the

form told each household to fill out the questionnaire and

return it to the Census Bureau by mail. Enumerators

would follow up with households that did not return the

questionnaire.

To maximize accuracy and minimize cost, the Bureau

tried to bring about the highest possible “self-response”

rate, i.e., to encourage as many households as possible to

respond by mail. For that reason, it tried to keep the

short form as short as possible. And it consistently op-

posed placing a citizenship question on that form. It

feared that adding a question about citizenship would

“inevitably jeopardize the overall accuracy of the popula-

tion count,” partly because of added response burden but

also because, as it explained, noncitizens faced with a

citizenship question would be less likely to respond due to

fears of “the information being used against them.” Fed-

eration for Am. Immigration Reform v. Klutznick, 486

F. Supp. 564, 568 (DC 1980).

Likely for similar reasons, Congress amended the Cen-

sus Act in 1976, enacting the two statutory provisions to

which I previously referred. These two provisions, 13

U. S. C. §6(c) and §195, together encourage the Secretary

not to ask demographic questions on the short form if the

information can be obtained either through the long form

or through administrative records.

II

With this statutory and historical background, we can

more easily consider the agency decision directly under

review. That decision “reinstate[s] [a] citizenship question

Cite as: 588 U. S. ____ (2019) 7

Opinion of BREYER, J.

on the 2020 decennial census.” App. to Pet. for Cert.

549a−550a (Memorandum from Wilbur L. Ross, Jr., Secre-

tary of Commerce, to Karen Dunn Kelley, Under Secretary

for Economic Affairs (Mar. 26, 2018)). The agency’s deci-

sion memorandum provided one and only one reason for

making that decision—namely, that the question was

“necessary to provide complete and accurate data in re-

sponse to” a request from the Department of Justice

(DOJ). Id., at 562a. The DOJ had requested the citizen-

ship question for “use [in] . . . determining violations of

Section 2 of the Voting Rights Act.” Id., at 548a.

The decision memorandum adds that the agency had not

been able to “determine definitively how inclusion of a

citizenship question on the decennial census will impact

responsiveness. However, even if there is some impact on

responses, the value of more complete and accurate data

derived from surveying the entire population outweighs

such concerns.” Id., at 562a. The Secretary’s decision

thus rests upon a weighing of potentially adverse conse-

quences (diminished responses and a less accurate census

count) against potentially offsetting advantages (better

citizenship data). In my view, however, the Secretary did

not make reasonable decisions about these potential costs

and benefits in light of the administrative record.

A

Consider first the Secretary’s conclusion that he was

“not able to determine definitively how inclusion of a

citizenship question on the decennial census will impact

responsiveness.” Ibid. Insofar as this statement implies

that adding the citizenship question is unlikely to affect

“responsiveness” very much (or perhaps at all), the evi-

dence in the record indicates the contrary.

1

The administrative record includes repeated Census

8 DEPARTMENT OF COMMERCE v. NEW YORK

Opinion of BREYER, J.

Bureau statements that adding the question would pro-

duce a less accurate count because noncitizens and His-

panics would be less likely to respond to the questionnaire.

See App. 105, 109–112, 158. The Census Bureau’s chief

scientist said specifically that adding the question would

have “an adverse impact on self-response and, as a result,

on the accuracy and quality of the 2020 Census.” Id., at

109. And the chief scientist backed this statement up by

pointing to “[t]hree distinct analyses.” Ibid.

The first analysis compared nonresponse rates for the

short-form census questionnaire (which did not include a

citizenship question) to nonresponse rates for the ACS

(which did). Obviously, more people fail to respond to the

ACS than to the short form. Yet taking into account the

fact that the nonresponse rate will be greater for the ACS

than for the short form, the Bureau found that the differ-

ence between the two is yet greater for noncitizen house-

holds than for citizen households (by 5.1%, according to

the Bureau). Id., at 111. This led the Bureau to say that

it was a “reasonable inference” that the presence of the

citizenship question accounted for the difference. Ibid.

The Bureau conducted two additional studies, both

analyzing data from the ACS. One study looked at re-

sponse rates for particular questions on the ACS. It

showed that the “no answer” rate for the citizenship ques-

tion was “much greater than the comparable rates” for

other census questions (for example, questions about age,

sex, race, and ethnicity). Id., at 110. And it showed that

the “no answer” rate for the citizenship question was

significantly higher among Hispanics. Id., at 109−110.

The last study examined “break-off ” rates, i.e., the rate at

which respondents stopped answering the questionnaire

upon reaching a particular question. It found that His-

panics were significantly more likely than were non-

Hispanics to stop answering at the point they reached the

citizenship question. Id., at 112. Together, these two

Cite as: 588 U. S. ____ (2019) 9

Opinion of BREYER, J.

studies provided additional support for the Census Bu-

reau’s determination that the citizenship question is likely

to mean disproportionately fewer responses from nonciti-

zens and Hispanics than from others. Ibid.

Putting numbers upon these study results, the Census

Bureau estimated that adding the question to the short

form would lead to 630,000 additional nonresponding

households. Id., at 114. That is to say, the question would

cause households covering more than 1 million additional

people to decline to respond to the census. When the

Bureau does not receive a response, it follows up with in-

person interviews in an effort to obtain the missing infor-

mation. The Bureau often interviews what it calls “prox-

ies,” such as family members and neighbors. But this

followup process is subject to error; and the error rate is

much greater than the error rate for self-responses. Ibid.

The Bureau thus explained that lower self-response rates

“degrade data quality” by increasing the risk of error and

leading to hundreds of thousands of fewer correct enumer-

ations. Id., at 113−115. The Bureau added that its esti-

mate was “conservative.” Id., at 115. It expected “differ-

ences between citizen and noncitizen response rates and

data quality” to be “amplified” in the 2020 census “com-

pared to historical levels.” Ibid. Thus, it explained, “the

decrease in self-response for citizen households in 2020

could be much greater than the 5.1 percentage points [it]

observed during the 2010 Census.” Id., at 115−116. Its

conclusion in light of this evidence was clear. Adding the

citizenship question to the short form was “very likely to

reduce the self-response rate” and thereby “har[m] the

quality of the census count.” Id., at 105, 158.

The Census Bureau’s analysis received support from

other submissions. Several States pointed out that noncit-

izens and racial minorities had been undercounted in

every prior census. Administrative Record 1091−1092.

They also drew attention to recent surveys indicating that

10 DEPARTMENT OF COMMERCE v. NEW YORK

Opinion of BREYER, J.

noncitizens had significant concerns about the confidenti-

ality of census responses. Ibid. Former directors of the

Census Bureau wrote that adding the citizenship question

so late in the process “would put the accuracy of the enu-

meration and success of the census in all communities at

grave risk.” Id., at 1057. The American Sociological Asso-

ciation and Census Scientific Advisory Committee echoed

these warnings. See id., at 787, 794−795. On the other

hand, the Secretary received submissions by other groups

that supported adding the question. See, e.g., id., at

1178−1179, 1206, 1276. But as far as I can tell (or as far

as the arguments made here and in the District Court

inform the matter), none of these latter submissions

significantly added to, or detracted from, the Census

Bureau’s submissions in respect to the question’s likely

impact on response rates.

2

The Secretary’s decision memorandum reached a quite

different conclusion from the Census Bureau. The memo-

randum conceded that “a lower response rate would lead

to . . . less accurate responses.” App. to Pet. for Cert. 556a.

But it concluded that neither the Census Bureau nor any

stakeholders had provided “definitive, empirical support”

for the proposition that the citizenship question would

reduce response rates. Id., at 554a. The memorandum

relied for that conclusion upon a number of considerations,

but each is contradicted by the record.

The memorandum first pointed to perceived shortcom-

ings in the Census Bureau’s analysis of nonresponse rates.

It noted that response rates are generally lower overall for

the long form and ACS than they are for the short form.

Id., at 552a−554a. But the Bureau explained that its

analysis accounted for this consideration, see App. 111,

and no one has given us reason to think the contrary. The

Secretary also noted that the Bureau “was not able to

Cite as: 588 U. S. ____ (2019) 11

Opinion of BREYER, J.

isolate what percentage of [the] decline was caused by the

inclusion of a citizenship question rather than some other

aspect of the long form survey.” App. to Pet. for Cert.

554a. But the Bureau said attributing the decline to the

citizenship question was a “reasonable inference,” App.

111, and again, nothing in the record contradicted the

Bureau’s judgment. And later analyses have borne out the

Bureau’s judgment that the citizenship question contrib-

utes to the decline in self-response. See, e.g., id., at

1002−1006, 1008 (August 2018 Census Bureau study).

The memorandum next cast doubt on the Census Bu-

reau’s analysis of the rate at which people responded to

particular questions on the ACS. It noted that the “no

answer” rate to the citizenship question was comparable to

the “no answer” rate for other questions on the ACS, in-

cluding educational attainment, income, and property

insurance. App. to Pet. for Cert. 553a. But as discussed

above, the Bureau found it significant that the “no an-

swer” rate for the citizenship question was “much greater”

than the “no answer” rate for the other questions that

appear on the short form—that is, the form on which the

citizenship question would appear. App. 110, 124. The

Secretary offered no reason why the demographic varia-

bles to which he pointed provided a better point of

comparison.

Finally, the memorandum relied on information provided

by two outside stakeholders. The first was a study con-

ducted by the private survey company Nielsen, in which

questions about place of birth and time of arrival had not

led to any appreciable decrease in the response rate. App.

to Pet. for Cert. 552a. But Nielsen, which in fact urged

the Secretary not to add the question, stated that its re-

spondents (unlike census respondents) were paid to re-

spond, and it is consequently not surprising that they did

so. Administrative Record 1276. The memo-

randum also cited statements by former Census Bureau

12 DEPARTMENT OF COMMERCE v. NEW YORK

Opinion of BREYER, J.

officials suggesting that empirical evidence about the

question’s potential impact on response rates was “lim-

ited.” App. to Pet. for Cert. 558a−559a; see also id., at

552a. But there was no reason to expect the former offi-

cials to provide more extensive empirical evidence as to a

citizenship question when they were not privy to the

internal Bureau analyses on this question. And, like

Nielsen, the former officials strongly urged the Secretary

not to ask the question. See Administrative Record 1057.

The upshot is that the Secretary received evidence of a

likely drop in census accuracy by a number somewhere in

the hundreds of thousands, and he received nothing signif-

icant to the contrary. The Secretary pointed out that the

Census Bureau’s information was uncertain, i.e., not

“definitive.” But that is not a satisfactory answer. Few

public-policy-related statistical studies of risks (say, of

many health or safety matters) are definitive. As the

Court explained in State Farm, “[i]t is not infrequent that

the available data do not settle a regulatory issue, and the

agency must then exercise its judgment in moving from

the facts and probabilities on the record to a policy conclu-

sion.” 463 U. S., at 52. But an agency confronted with

this situation cannot “merely recite the terms ‘substantial

uncertainty’ as a justification for its actions.” Ibid. In-

stead, it “must explain the evidence which is available”

and typically must offer a reasoned explanation for taking

action without “engaging in a search for further evidence.”

Ibid.

The Secretary did not do so here. He did not explain

why he made the decision to add the question without

following the Bureau’s ordinary practice of extensively

testing proposed changes to the census questionnaire. See

App. 624−630, 641 (discussing testing process); see also,

e.g., Brief for Former Census Bureau Directors as Amici

Curiae 17−21 (discussing prior examples of questions that

the Bureau decided not to add after many years of pretest-

Cite as: 588 U. S. ____ (2019) 13

Opinion of BREYER, J.

ing). Without that testing, the Secretary could not treat

the Bureau’s expert opinions and its experience with the

relevant surveys as worthless merely because its conclu-

sions were not precise. The Bureau’s opinions were

properly considered as evidence of likelihoods, probabili-

ties, or risks.

As noted above, the consequences of mistakes in the

census count, of even a few hundred thousand, are grave.

Differences of a few thousand people, as between one State

and another, can mean a loss or gain of a congressional

seat—a matter of great consequence to a State. See 351

F. Supp. 3d, at 594. And similar small differences can

make a large difference to the allocation of federal funds

among competing state programs. Id., at 596−597; see

also Baldrige, 455 U. S., at 353−354, n. 9. If near-absolute

certainty is what the Secretary meant by “definitive,” that

insistence would itself be arbitrary in light of the constitu-

tional and statutory consequences at stake. And if the

Secretary instead meant that the evidence does not indi-

cate a serious risk of a less accurate count, that conclusion

does not find support in the record.

B

Now consider the Secretary’s conclusion that, even if

adding a citizenship question diminishes the accuracy of

the enumeration, “the value of more complete and accu-

rate data derived from surveying the entire population

outweighs . . . concerns” about diminished accuracy. App.

to Pet. for Cert. 562a (emphasis added). That conclusion

was also arbitrary. The administrative record indicates

that adding a citizenship question to the short form would

produce less “complete and accurate data,” not more.

1

The Census Bureau informed the Secretary that, for

about 90% of the population, accurate citizenship data is

14 DEPARTMENT OF COMMERCE v. NEW YORK

Opinion of BREYER, J.

available from administrative records maintained by the

Social Security Administration and Internal Revenue

Service. App. 146. The Bureau further informed the

Secretary that it had “high confidence” that it could develop

a statistical model that would accurately impute citizen-

ship status for the remaining 10% of the population. Ibid.

The Bureau stated that these methods alone—using exist-

ing administrative records for 90% of the population and

statistical modeling for the remaining 10%—would yield

more accurate citizenship data than also asking a citizen-

ship question. Id., at 159. How could that be so? The

answer is somewhat technical but readily understandable.

First, consider the 90% of the population (about 295

million people) as to whom administrative records are

available. The Government agrees that using these

administrative records would provide highly reliable

information about citizenship, because the records “re-

quire proof of citizenship.” Id., at 117. By contrast, if

responses to a citizenship question were used for this

group, the Census Bureau predicted without contradiction

that about one-third of the noncitizens in this group who

respond would answer the question untruthfully, claiming

to be citizens when they are not. Id., at 147. Those incor-

rect answers—about 9.5 million in total—would conflict

with the administrative records on file for those nonciti-

zens. And what would the Census Bureau do with the

conflicting data? If it accepts the answer to the citizenship

question as determinative, it will have less accurate data.

If it accepts the citizenship data from administrative

records as determinative, asking the question will have

served no purpose.

Thus, as to 295 million people—the overwhelming ma-

jority of the population—asking the citizenship question

would at best add nothing at all. I say “at best” because,

for one thing, the Census Bureau informed the Secretary

that asking the question would produce 1 million more

Cite as: 588 U. S. ____ (2019) 15

Opinion of BREYER, J.

people who could not be linked to administrative records,

which in turn would require the Census Bureau to resort

to a less accurate source of citizenship data for these

people. See id., at 147−149; see also 351 F. Supp. 3d, at

538−539. For another, the policy of the Census Bureau

has always been to use census responses rather than

administrative records in cases where the two conflict.

App. 147. In this case, that practice would mean accepting

9.5 million inaccurate responses even though accurate

administrative records are available. See ibid. The Census

Bureau could perhaps change that practice, but the Secre-

tary’s decision memorandum said nothing about the

matter. It did not address the problem.

Second, consider the remaining 10% of the population

(about 35 million people) for whom the Government lacks

administrative records. The question here is which ap-

proach would yield the most “complete and accurate”

citizenship data for this group—adding a citizenship

question or using statistical modeling alone? To answer

this question, we must further divide this group into two

categories—those who would respond to the citizenship

question if it were asked and those who would not.

Start with the category of about 22 million people who

would answer a citizenship question if it were asked.

Would their answers regarding citizenship be more accu-

rate than citizenship data produced by statistical model-

ing? The Census Bureau said no. That is because many of

the noncitizens in this group would answer the question

falsely, resulting in an estimated 500,000 inaccurate

answers. See id., at 148. And those who answer the

question falsely would be commingled, perhaps randomly,

with those who answer it correctly, thereby casting doubt

on the answers of all 22 million, with no way of knowing

which answers are correct and which are false. By con-

trast, the Bureau believed that it could develop a statisti-

cal model that would produce more accurate citizenship

16 DEPARTMENT OF COMMERCE v. NEW YORK

Opinion of BREYER, J.

data than these census responses. The Bureau therefore

informed the Secretary that it could do better. As the

Bureau’s chief scientist explained, although “[o]ne might

think” that asking the question “could help fill the . . .

gaps” in the administrative records, the data did not sup-

port that assumption. Id., at 157. Instead, he explained,

responses to the citizenship question “may not be reliable,”

which “calls into question their ability to improve upon”

the Bureau’s statistical modeling process. Ibid.

Next, turn to the more than 13 million remaining people

who would not answer the citizenship question even if it

were asked. As to this category, the Census Bureau would

still need to use statistical modeling to obtain citizenship

data, because there would be no census response to use

instead. Hence, asking the citizenship question would add

nothing at all as to this group. To the contrary, as the

Government concedes, asking the question would reduce

the accuracy of the citizenship data for this group, because

the relatively inaccurate answers to the citizenship ques-

tion would diminish the overall accuracy of the Census

Bureau’s statistical model. See Brief for Petitioners 34

(conceding that the Census Bureau model will be “highe[r]

quality” without the question than with it); 351 F. Supp.

3d, at 640 (explaining that asking the question would

“corrup[t] . . . the data generated by extrapolating from

self-responses through imputation”).

In sum, in respect to the 295 million persons for whom

administrative records exist, asking the question on the

short form would, at best, be no improvement over using

administrative records alone. And in respect to the re-

maining 35 million people for whom no administrative

records exist, asking the question would be no better, and

in some respects would be worse, than using statistical

modeling. The Census Bureau therefore told the Secre-

tary that asking the citizenship question, even in addition

to using administrative records, “would result in poorer

Cite as: 588 U. S. ____ (2019) 17

Opinion of BREYER, J.

quality citizenship data” than using administrative rec-

ords alone, and would “still have all the negative cost and

quality implications” of asking the citizenship question.

App. 159. I could find no evidence contradicting that

prediction.

2

If my description of the record is correct, it raises a

serious legal problem. How can an agency support the

decision to add a question to the short form, thereby risk-

ing a significant undercount of the population, on the

ground that it will improve the accuracy of citizenship

data, when in fact the evidence indicates that adding the

question will harm the accuracy of citizenship data? Of

course it cannot. But, as I have just said, I have not been

able to find evidence to suggest that adding the question

would result in more accurate citizenship data. Neither

could the District Court. After reviewing the record in

detail, the District Court found that “all of the relevant

evidence before Secretary Ross—all of it—demonstrated

that using administrative records . . . would actually

produce more accurate [citizenship] data than adding a

citizenship question to the census.” 351 F. Supp. 3d,

at 650.

What consideration did the Secretary give to this prob-

lem? He stated simply that “[a]sking the citizenship

question of 100 percent of the population gives each re-

spondent the opportunity to provide an answer,” which

“may eliminate the need for the Census Bureau to have to

impute an answer for millions of people.” App. to Pet. for

Cert. 556a. He therefore must have assumed, sub silentio,

exactly what the Census Bureau experts urged him not to

assume—that answers to the citizenship question would

be more accurate than statistical modeling. And he ig-

nored the undisputed respects in which asking the ques-

tion would make the existing data less accurate. Other

18 DEPARTMENT OF COMMERCE v. NEW YORK

Opinion of BREYER, J.

than his assumption, the Secretary said nothing, absolutely

nothing, to suggest a reasoned basis for disagreeing with

the Bureau’s expert statistical judgment.

The Government now maintains that the Secretary

reasonably discounted the Census Bureau’s recommenda-

tion because it was based on an untested prediction about

the accuracy of its model. But this is not a case in which

the Secretary was presented with a policy choice between

two reasonable but uncertain options. For one thing, the

record is much less uncertain than the Government

acknowledges. Although it is true that the Census Bureau

at one point told the Secretary that it could not “quantify

the relative magnitude of the errors across the alterna-

tives at this time,” App. 148, it unequivocally stated that

asking the question “would result in poorer quality citizen-

ship data” than omitting it, id., at 159 (emphasis added).

Thus, even if the Bureau could not “quantify” the relative

accuracy of the options, it could and did conclude that one

option was likely more accurate than the other. Even in

the face of some uncertainty, where all available evi-

dence indicates that one option is better than the other,

it is unreasonable to choose the worse option without

explanation.

For another thing, to the extent the record reflects some

uncertainty regarding the accuracy of the Census Bureau’s

statistical model, that is because the model needed to be

“developed and tested” before it could be employed. Id., at

146. But the Secretary made his decision before any such

development or testing could be completed. Having decided

to make an immediate decision rather than wait for test-

ing, the Secretary could not dismiss the Bureau’s predic-

tion about the inadvisability of that decision on the ground

that the prediction reflected likelihoods, probabilities, and

risks rather than certainties.

Finally, recall that the Census Act requires the Secre-

tary to use administrative records rather than direct

Cite as: 588 U. S. ____ (2019) 19

Opinion of BREYER, J.

inquiries to “the maximum extent possible.” 13 U. S. C.

§6(c). That statutory requirement highlights what should

be obvious: Whether adding a citizenship question to the

short form would produce more accurate citizenship data

is a relevant factor—indeed, a critically important factor—

that the Secretary was required to consider. Here, the

Secretary did not adequately explain why he rejected the

evidence that adding the question would yield less accu-

rate data. He did not even acknowledge that the Census

Act obliged him to use administrative records rather than

asking a question to the extent possible. And he did not

explain how obtaining citizenship data that is no better or

worse than the data otherwise available could justify

jeopardizing the accuracy of the census count.

In these respects, the Secretary failed to consider “im-

portant aspect[s] of the problem” and “offered an explana-

tion for [his] decision that runs counter to the evidence

before the agency.” State Farm, 463 U. S., at 43.

C

The Secretary’s failure to consider this evidence—that

adding the question would harm the census count in the

interest of obtaining less accurate citizenship data—

provides a sufficient basis for setting the decision aside.

But there is more. The reason that the Secretary provided

for needing more accurate citizenship information in the

first place—to help the DOJ enforce the Voting Rights

Act—is unconvincing.

The Secretary stated that adding the citizenship ques-

tion was “necessary to provide complete and accurate data

in response to the DOJ request.” App. to Pet. for Cert.

562a. The DOJ’s request in turn asserted that the citizen-

ship data currently available from the ACS was not “ideal”

for enforcing the Voting Rights Act. Id., at 567a. One of

the DOJ’s principal complaints was that ACS data is

reported for groups of census blocks rather than for each

20 DEPARTMENT OF COMMERCE v. NEW YORK

Opinion of BREYER, J.

census block itself. The DOJ letter stated that adding a

citizenship question could provide it with individual block-

by-block data which, the DOJ maintained, would allow it

to better enforce the Voting Rights Act’s protections for

minority voters. Id., at 568a.

This rationale is difficult to accept. One obvious prob-

lem is that the DOJ provided no basis to believe that more

precise data would in fact help with Voting Rights Act

enforcement. Congress enacted the Voting Rights Act in

1965—15 years after the census last asked every house-

hold about citizenship. Actions to enforce the Act have

therefore always used citizenship data derived from sam-

pling. Yet I am aware of no one—not in the Department of

Commerce proceeding, in the District Court, or in this

Court—who has provided a single example in which en-

forcement of the Act has suffered due to lack of more

precise citizenship data. Organizations with expertise in

this area tell us that asking the citizenship question will

not help enforce the Act. See, e.g., Brief for NAACP Legal

Defense & Educational Fund, Inc., as Amicus Curiae

30−36. Rather, the question will, by depressing the count

of minority groups, hurt those whom the Act seeks to help.

See, e.g., Brief for Leadership Conference on Civil and

Human Rights et al. as Amici Curiae 21−29.

Another problem with the Secretary’s rationale is that,

even assuming the DOJ needed more detailed citizenship

data, there were better ways of obtaining the needed data.

The Census Bureau offered to provide the DOJ with data

using administrative records, which, as I have pointed out,

are likely just as accurate, if not more accurate, than

responses to a citizenship question. The Census Bureau

offered to provide this data at the census block level,

which would resolve each of the DOJ’s complaints about

the existing ACS data. See Administrative Record 3289.

But the Secretary rejected this alternative without ex-

plaining why it would not fully respond to the DOJ’s re-

Cite as: 588 U. S. ____ (2019) 21

Opinion of BREYER, J.

quest. That failure was particularly problematic given

that the Census Act requires the Secretary to use other

methods of obtaining demographic information if at all

possible. See §§6(c), 195.

Normally, the Secretary would be entitled to place

considerable weight upon the DOJ’s expertise in matters

involving the Voting Rights Act, but there are strong

reasons for discounting that expertise here. The adminis-

trative record shows that DOJ’s request to add a citizen-

ship question originated not with the DOJ, but with the

Secretary himself. See Administrative Record 3710. The

Voting Rights Act rationale was in fact first proposed by

Commerce Department officials. See ibid. DOJ officials,

for their part, were initially uninterested in obtaining

more detailed citizenship data, App. 414, and they agreed

to request the data only after the Secretary personally

spoke to the Attorney General about the matter, see Ad-

ministrative Record 2651. And when the acting director of

the Census Bureau proposed alternative means of obtain-

ing better citizenship data, DOJ officials declined to meet

to discuss the proposal. See id., at 3460.

Taken as a whole, the evidence in the administrative

record indicates that the Voting Rights Act rationale

offered by the Secretary was not just unconvincing, but

pretextual. And, as the Court concludes, further evidence

outside the administrative record but present in the trial

record supports the finding of pretext. See Part V, ante.

Among other things, that evidence reveals that the DOJ

official who wrote the letter agreed that adding the ques-

tion “is not necessary for DOJ’s VRA enforcement efforts.”

App. 1113. And that official further acknowledged that he

did not “know whether or not [citizenship] data produced

from responses to the citizenship question . . . will, in fact,

be more precise than the [citizenship] data on which the

DOJ is currently relying for purposes of VRA enforce-

ment.” Id., at 1102.

22 DEPARTMENT OF COMMERCE v. NEW YORK

Opinion of BREYER, J.

The Court explains, and I agree, that a court normally

should not “reject an agency’s stated reasons for acting

simply because the agency might also have had other

unstated reasons.” Ante, at 24. But in this case, “the

evidence tells a story that does not match the explanation

the Secretary gave for his decision.” Ante, at 27. This

evidence strongly suggests that the Secretary’s stated

rationale was pretextual. I consequently join Part V of the

Court’s opinion (except insofar as it concludes that the

Secretary’s decision was reasonable apart from the ques-

tion of pretext). And I agree that the pretextual nature of

the Secretary’s decision provides a sufficient basis to

affirm the District Court’s decision to send the matter

back to the agency.

* * *

I agree with the Court that the APA gives agencies

broad leeway to carry out their legislatively delegated

duties. And I recognize that Congress has specifically

delegated to the Secretary of Commerce the authority to

conduct a census of the population “in such form and

content as he may determine.” §141(a). But although this

delegation is broad, it is not without limits. The APA

supplies one such limit. In an effort to ensure rational

decisionmaking, the APA prohibits an agency from mak-

ing decisions that are “arbitrary, capricious, [or] an abuse

of discretion.” 5 U. S. C. §706(2)(A).

This provision, of course, does not insist that deci-

sionmakers think through every minor aspect of every

problem that they face. But here, the Secretary’s decision

was a major one, potentially affecting the proper workings

of our democratic government and the proper allocation of

hundreds of billions of dollars in federal funds. Cf. ante, at

10. Yet the decision was ill considered in a number of

critically important respects. The Secretary did not give

adequate consideration to issues that should have been

Cite as: 588 U. S. ____ (2019) 23

Opinion of BREYER, J.

central to his judgment, such as the high likelihood of an

undercount, the low likelihood that a question would yield

more accurate citizenship data, and the apparent lack of

any need for more accurate citizenship data to begin with.

The Secretary’s failures in considering those critical issues

make his decision unreasonable. They are the kinds of

failures for which, in my view, the APA’s arbitrary and

capricious provision was written.

As I have said, I agree with the Court’s conclusion as to

pretext and with the decision to send the matter back to

the agency. I do not agree, however, with several of the

Court’s conclusions concerning application of the arbitrary

and capricious standard. In my view, the Secretary’s

decision—whether pretextual or not—was arbitrary,

capricious, and an abuse of his lawfully delegated discre-

tion. I consequently concur in the Court’s judgment to the

extent that it affirms the judgment of the District Court.

Cite as: 588 U. S. ____ (2019) 1

ALITO, J., concurring in part

Opinion and,dissenting

of ALITO J. in part

SUPREME COURT OF THE UNITED STATES

_________________

No. 18–966

_________________

DEPARTMENT OF COMMERCE, ET AL., PETITIONERS

v. NEW YORK, ET AL.

ON WRIT OF CERTIORARI BEFORE JUDGMENT TO THE UNITED

STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

[June 27, 2019]

JUSTICE ALITO, concurring in part and dissenting in

part.

It is a sign of our time that the inclusion of a question

about citizenship on the census has become a subject of

bitter public controversy and has led to today’s regrettable

decision. While the decision to place such a question on

the 2020 census questionnaire is attacked as racist, there

is a broad international consensus that inquiring about

citizenship on a census is not just appropriate but advisa-

ble. No one disputes that it is important to know how

many inhabitants of this country are citizens. 1 And the

most direct way to gather this information is to ask for it

in a census. The United Nations recommends that

a census inquire about citizenship, 2 and many countries

——————

1 As a 2016 Census Bureau guidance document explained, obtaining

citizenship statistics is “essential for agencies and policy makers setting

and evaluating immigration policies and laws, understanding how

different immigrant groups are assimilated, and monitoring against

discrimination.” Dept. of Commerce, Census Bureau, American Com-

munity Survey, Why We Ask: Place of Birth, Citizenship and Year of

Entry, www2.census. gov /programs - surveys / acs / about / qbyqfact / 2016 /

Citizenship.pdf (all Internet materials as last visited June 25, 2019).

2 United Nations, Dept. of Economic and Social Affairs Statistics Div.,

Principles and Recommendations for Population and Housing Censuses

163, 191 (rev. 3, 2017).

2 DEPARTMENT OF COMMERCE v. NEW YORK

ALITO, J., concurring in part

Opinion and,dissenting

of ALITO J. in part

do so. 3

Asking about citizenship on the census also has a rich

history in our country. Every census, from the very first

one in 1790 to the most recent in 2010, has sought not just

a count of the number of inhabitants but also varying

amounts of additional demographic information. In 1800,

Thomas Jefferson, as president of the American Philo-

sophical Society, signed a letter to Congress asking for the

inclusion on the census of questions regarding “ ‘the re-

spective numbers of native citizens, citizens of foreign

birth, and of aliens’ ” “ ‘for the purpose . . . of more exactly

distinguishing the increase of population by birth and

immigration.’ ” C. Wright, History and Growth of the

United States Census (prepared for the Senate Committee

on the Census), S. Doc. No. 194, 56th Cong., 1st Sess., 19

(1900). In 1820, John Quincy Adams, as Secretary of

State, was responsible for conducting the census, and

consistent with the 1820 Census Act, he instructed the

marshals who were charged with gathering the infor-

mation to ask about citizenship. 4 In 1830, when Martin

Van Buren was Secretary of State, a question about citi-

zenship was again included. 5 With the exception of the

census of 1840, at least some portion of the population was

asked a question about citizenship as part of the census

through 2000, after which the question was moved to the

American Community Survey, which is sent to only a

small fraction of the population. All these census inquiries

——————

3 See, e.g., Brief for Petitioners 29 (“ ‘[O]ther major democracies in-

quire about citizenship on their census, including Australia, Canada,

France, Germany, Indonesia, Ireland, Mexico, Spain, and the United

Kingdom, to name a few’ ” (quoting App. to Pet. for Cert. 561a)).

4 See Act of Mar. 14, 1820, ch. 24, 3 Stat. 550; Wright, History and

Growth of the United States Census, S. Doc. No. 194, 56th Cong., 1st

Sess., 133–137.

5 See Dept. of Commerce, Census Bureau, History: 1830 Census Ques-

tionnaire, https: / /www . census . gov /history /www /through _ the _ decades /

questionnaires/1830_2.html.

Cite as: 588 U. S. ____ (2019) 3

ALITO, J., concurring in part

Opinion and,dissenting

of ALITO J. in part

were made by the Executive pursuant to congressional

authorization. None were reviewed by the courts.

Now, for the first time, this Court has seen fit to claim a

role with respect to the inclusion of a citizenship question

on the census, and in doing so, the Court has set a danger-

ous precedent, both with regard to the census itself and

with regard to judicial review of all other executive agency

actions. For the reasons ably stated by JUSTICE THOMAS,

see ante, p. ___ (opinion concurring in part and dissenting

in part), today’s decision is either an aberration or a li-

cense for widespread judicial inquiry into the motivations

of Executive Branch officials. If this case is taken as a

model, then any one of the approximately 1,000 district

court judges in this country, upon receiving information

that a controversial agency decision might have been

motivated by some unstated consideration, may order the

questioning of Cabinet officers and other high-ranking

Executive Branch officials, and the judge may then pass

judgment on whether the decision was pretextual. What

Bismarck is reputed to have said about laws and sausages

comes to mind. And that goes for decisionmaking by all

three branches.

To put the point bluntly, the Federal Judiciary has no

authority to stick its nose into the question whether it is

good policy to include a citizenship question on the census

or whether the reasons given by Secretary Ross for that

decision were his only reasons or his real reasons. Of

course, we may determine whether the decision is consti-

tutional. But under the considerations that typically

guide this Court in the exercise of its power of judicial

review of agency action, we have no authority to decide

whether the Secretary’s decision was rendered in compli-

ance with the Administrative Procedure Act (APA).

I

The APA authorizes judicial review of “agency action”

4 DEPARTMENT OF COMMERCE v. NEW YORK

ALITO, J., concurring in part

Opinion and,dissenting

of ALITO J. in part

taken in violation of law, 5 U. S. C. §§706(2)(A)–(D), but

§701(a)(2) of the APA bars judicial review of agency ac-

tions that are “committed to agency discretion by law.”

Although we have characterized the scope of §701(a)(2) as

“ ‘narrow,’ ” Heckler v. Chaney, 470 U. S. 821, 830 (1985),

there are circumstances in which it applies. And while

our cases recognize a strong presumption in favor of judi-

cial review of agency action, see, e.g., Weyerhaeuser Co. v.

United States Fish and Wildlife Serv., 586 U. S. ___, ___

(2018) (slip op., at 11), this “is ‘just’ a presumption,” and

like all real presumptions, it may be (and has been) rebut-

ted, Lincoln v. Vigil, 508 U. S. 182, 190 (1993). 6

In considering whether the general presumption in

favor of judicial review has been rebutted in specific cases,

we have identified factors that are relevant to the inquiry:

whether the text and structure of the relevant statutes

leave a court with any “ ‘meaningful standard against

which to judge the agency’s exercise of discretion,’ ” Web-

ster v. Doe, 486 U. S. 592, 600 (1988) (quoting Heckler,

supra, at 830); whether the matter at hand has tradition-

ally been viewed as committed to agency discretion, see

ICC v. Locomotive Engineers, 482 U. S. 270, 282 (1987);

whether the challenged action manifests a “general un-

suitability” for judicial review because it involves a “com-

plicated balancing of a number of factors,” including

judgments regarding the allocation of agency resources or

matters otherwise committed to another branch, Heckler,

supra, at 831–832; and whether judicial review would

produce “disruptive practical consequences,” Southern R.

——————

6 Because the §701(a)(2) analysis dictates whether APA review may be

had, JUSTICE BREYER’s assertion that the APA “supplies [a] limit” on

the Secretary’s otherwise “broad” delegation, ante, at 22 (opinion

concurring in part and dissenting in part), mistakenly assumes the

answer to the reviewability question. Cf. Heckler v. Chaney, 470 U. S.

821, 828 (1985) (“[B]efore any review at all may be had, a party must

first clear the hurdle of §701(a)”).

Cite as: 588 U. S. ____ (2019) 5

ALITO, J., concurring in part

Opinion and,dissenting

of ALITO J. in part

Co. v. Seaboard Allied Milling Corp., 442 U. S. 444, 457

(1979) (applying this factor to the reviewability inquiry

under §701(a)(1)).

Applying those factors, I conclude that the decision of

the Secretary of Commerce to add core demographic ques-

tions to the decennial census questionnaire is committed

to agency discretion by law and therefore may not be

challenged under the APA. 7

II

A

I start with the question whether the relevant statutory

provisions provide any standard that courts can apply in

reviewing the Secretary’s decision to restore a citizenship

question to the census. The provision that directly ad-

dresses this question is 13 U. S. C. §141(a), the statute

that vests the Secretary with authority to administer the

decennial census. This provision gives the Secretary

unfettered discretion to include on the census questions

about basic demographic characteristics like citizenship.

It begins by providing that the Secretary

“shall, in the year 1980 and every 10 years thereafter,

take a decennial census of population . . . in such form

and content as he may determine, including the use of

sampling procedures and special surveys.” Ibid.

(emphasis added).

The two phrases I have highlighted—“census of popula-

tion” and “in such form and content as he may deter-

mine”—are of immediate importance. A “census of popu-

——————

7 The Government concedes that courts may review constitutional

challenges to the Secretary’s actions. Cf. Webster v. Doe, 486 U. S. 592,

603 (1988). For the reasons given in the Court’s opinion, see ante, at

11–13, I agree that the only remaining constitutional claim at issue—

respondents’ Enumeration Clause claim—lacks merit and thus does not

constitute a basis for enjoining the addition of the citizenship question.

6 DEPARTMENT OF COMMERCE v. NEW YORK

ALITO, J., concurring in part

Opinion and,dissenting

of ALITO J. in part

lation” is broader than a mere head count. The term is

defined as “a census of population . . . and matters relating

to population.” §141(g) (emphasis added). Because

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