Amicus Curiae Brief — Department of Commerce, et al., Petitioners v. New York, et al.
Supreme Court briefApr 1, 2019
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NO. 18-966
IN THE
DEPARTMENT OF COMMERCE, ET AL.,
Petitioners,
v.
STATE OF NEW YORK, ET AL.,
Respondents.
On Writ of Certiorari Before Judgment
to the United States Court of Appeals
for the Second Circuit
BRIEF OF NICHOLAS BAGLEY, MICHAEL DORF,
AZIZ HUQ, LEAH LITMAN, GILLIAN METZGER,
JON D. MICHAELS, LAURENCE H. TRIBE, AND
STEPHEN I. VLADECK AS AMICI CURIAE IN
SUPPORT OF RESPONDENTS
ROBERTA A. KAPLAN
JULIE E. FINK
JOSHUA MATZ
Counsel of Record
MATTHEW J. CRAIG
Kaplan Hecker & Fink LLP
350 Fifth Avenue | Suite 7110
New York, NY 10118
(212) 763-0883
jmatz@kaplanhecker.com
Counsel for Amici Curiae
i
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES ...................................... iii
INTEREST OF AMICI CURIAE ............................... 1
SUMMARY OF ARGUMENT .................................... 1
ARGUMENT ............................................................... 5
I.
RESPONDENTS HAVE STANDING ............. 5
II.
THIS DECISION IS NOT COMMITTED
TO AGENCY DISCRETION BY LAW .......... 10
A.
Section 701(a)(2) Creates A
Narrow Exception from Judicial
Review ................................................. 11
B.
Secretary Ross’s Decision to Add a
Citizenship Question Is Not
Exempt from Review Under
Section 701(a)(2).................................. 17
1.
There Is Law to Apply Here ..... 19
a.
The Census Act .............. 19
b.
The Census Clause ........ 22
c.
Internal Agency
Standards ....................... 24
ii
III.
2.
There Is No Tradition
Precluding Judicial Review...... 27
3.
Judicial
Review
Is
Workable and Essential to
Prevent Abuses ......................... 29
4.
Judicial Review Is a Vital
Check Because Failure to
Complete the Census Is a
Federal Crime ........................... 31
THE DISTRICT COURT DID NOT
ABUSE ITS BROAD DISCRETION IN
ALLOWING EXTRA-RECORD
DISCOVERY .................................................. 33
CONCLUSION ......................................................... 37
APPENDIX – List of Amici Curiae .......................... 1a
iii
TABLE OF AUTHORITIES
Page(s)
CASES
Abbott Labs. v. Gardner,
387 U.S. 136 (1967) ................................................ 13
Abbott Labs. v. Harris,
481 F. Supp. 74 (N.D. Ill. 1979)............................. 35
Abramski v. United States,
573 U.S. 169 (2014) ................................................ 32
Adams v. Watson,
10 F.3d 915 (1st Cir. 1993) ...................................... 8
Air Transp. Ass’n of America Inc. v. Nat’l Mediation
Bd., 663 F.3d 476 (D.C. Cir. 2011) ........................ 36
Ass’n of Data Processing Serv. Orgs., Inc. v. Camp,
397 U.S. 150 (1970) .................................................. 8
Bar MK Ranches v. Yuetter,
994 F.2d 735 (10th Cir. 1993) ................................ 34
Bennett v. Spear,
520 U.S. 154 (1997) ................................................ 21
Bd. of Trustees of Knox Cty. (Indiana) Hosp. v.
Sullivan, 965 F.2d 558 (7th Cir. 1992) ................. 22
iv
California v. Ross, No. 18 Civ. 1865, 2018 WL
7142099 (N.D. Cal. Aug. 17, 2018) .................. 24, 26
California v. Ross,
No. 18 Civ. 1865, 2019 WL 1052434 (N.D. Cal.
Mar. 6, 2019) .......................................................... 31
Camden v. Plotkin,
466 F. Supp. 44 (D.N.J. 1978) ............................... 27
Carey v. Klutznick,
508 F. Supp. 404 (S.D.N.Y. 1980).......................... 27
Carey v. Klutznick,
637 F.2d 834 (2d. Cir. 1980) .................................. 27
Citizens to Preserve Overton Park, Inc. v. Volpe,
401 U.S. 402 (1971) ........................................ passim
Clinton v. City of New York,
524 U.S. 417 (1998) .............................................. 3, 8
Cuomo v. Baldrige,
674 F. Supp. 1089 (S.D.N.Y. 1987)........................ 27
Davis v. FEC,
554 U.S. 724 (2008) .............................................. 3, 7
Dep’t of Commerce v. Montana,
503 U.S. 442 (1992) ................................................ 24
Dickson v. Sec’y of Def.,
68 F.3d 1396 (D.C. Cir. 1995) ................................ 21
v
Doe 2 v. Shanahan,
917 F.3d 694 (D.C. Cir. 2019) ................................ 36
Dopico v. Goldschmidt,
687 F.2d 644 (2d Cir. 1982) ................................... 34
Encino Motorcars, LLC v. Navarro,
136 S. Ct. 2117 (2016) ............................................ 11
F.C.C. v. Fox Television Stations, Inc.,
556 U.S. 502 (2009) .......................................... 12, 26
Franklin v. Mass,
505 U.S. 788 (1992) ........................................ passim
Gill v. Whitford,
138 S. Ct. 1916 (2018) .............................................. 5
Heckler v. Chaney,
470 U.S. 821 (1985) ........................................ passim
ICC v. Locomotive Engineers,
482 U.S. 270 (1987) .............................. 15, 18, 27, 28
I.N.S. v. Yueh-Shaio Yang,
519 U.S. 26 (1996) ............................................ 25, 26
Jagers v. Fed. Crop Ins. Corp.,
758 F.3d 1179 (10th Cir. 2014) .............................. 36
Jesus Christ Is the Answer Ministries, Inc. v.
Baltimore Cty., Maryland,
915 F.3d 256 (4th Cir. 2019) .................................. 37
vi
Judulang v. Holder,
565 U.S. 42 (2011) .................................................. 12
Kingdomware Techs., Inc. v. United States,
136 S. Ct. 1969 (2016) ............................................ 21
Kravitz v. U.S. Dep’t of Commerce,
336 F. Supp. 3d 545 (D. Md. 2018) ...... 23, 24, 27, 31
La Unión del Pueblo Entero v. Ross,
353 F. Supp. 3d 381 (D. Md. 2018) ........................ 23
Lexmark Int’l, Inc. v. Static Control Components, Inc.,
572 U.S. 118 (2014) .............................................. 5, 7
Lincoln v. Vigil,
508 U.S. 182 (1993) ........................................ passim
Lujan v. Defs. of Wildlife,
504 U.S. 555 (1992) .......................................... 3, 5, 9
Mach Mining, LLC v. E.E.O.C.,
135 S. Ct. 1645 (2015) ...................................... 13, 16
Miss. Comm’n on Envtl. Quality v. E.P.A,
790 F.3d 138 (D.C. Cir. 2015) ................................ 36
Morton v. Ruiz,
415 U.S. 199 (1974) ................................................ 25
Motor Vehicle Mfrs. Assn. of United States, Inc. v.
State Farm Mut. Automobile Ins. Co.,
463 U.S. 29 (1983) ...................................... 11, 14, 29
vii
New York v. Salazar,
701 F. Supp. 2d 224 (N.D.N.Y. 2010) .................... 35
New York v. United States Dept. of Commerce,
713 F. Supp. 48 (E.D.N.Y. 1989) ........................... 27
New York v. United States Dept. of Commerce,
739 F. Supp. 761 (E.D.N.Y. 1990) ......................... 27
NicSand, Inc. v. 3M Co.,
507 F.3d 442 (6th Cir. 2007) (en banc).................... 8
Philadelphia v. Klutznick,
503 F. Supp. 663 (E.D. Pa. 1980) .......................... 27
Portland Audubon Soc. v. Endangered Species
Comm., 984 F.2d 1534 (9th Cir. 1993) ............ 34, 35
Salazar v. King,
822 F.3d 61 (2d Cir. 2016) ..................................... 25
Saratoga Dev. Corp. v. United States,
21 F.3d 445 (D.C. Cir. 1994) .................................. 34
S.E.C. v. Chenery Corp.,
318 U.S. 80 (1943) .................................................. 34
Shapiro v. McManus,
136 S. Ct. 450 (2015) .............................................. 21
Sherley v. Sebelius,
610 F.3d 69 (D.C. Cir. 2010) .................................... 8
South Dakota v. Wayfair, Inc.,
138 S. Ct. 2080 (2018) .................................... 3, 9, 10
viii
TrafficSchool.com, Inc. v. Edriver Inc.,
653 F.3d 820 (9th Cir. 2011) .................................... 7
United States v. Apel,
571 U.S. 359 (2014) ................................................ 32
United States v. Evans,
333 U.S. 483 (1948) ................................................ 32
United States v. Kozminski,
487 U.S. 931 (1988) ................................................ 32
Utah v. Evans,
536 U.S. 452 (2002) .................................... 17, 23, 24
Vill. of Arlington Heights v. Metro. Hous. Dev. Corp.,
429 U.S. 252 (1977) ................................................ 36
Webster v. Doe,
486 U.S. 592 (1988) ........................ 15, 18, 19, 22, 28
Weyerhaeuser Co. v. U.S. Fish & Wildlife Serv.,
139 S. Ct. 361, 370 (2018) .............................. passim
Willacoochee v. Baldrige,
556 F. Supp. 551 (S.D. Ga. 1983) .......................... 27
Wisconsin v. City of New York,
517 U.S. 1 (1996) .................................. 22, 23, 24, 29
Young v. Klutznick,
497 F. Supp. 1318 (E.D. Mich. 1980) .................... 27
ix
CONSTITUTION AND STATUTES
U.S. Const., Art. I, § 2, cl. 3 ....................................... 23
2 U.S.C. § 2a .............................................................. 21
5 U.S.C. § 701(a)(2)............................................ passim
5 U.S.C. § 706 ............................................................ 33
5 U.S.C. § 706(2)(A) ................................................... 12
13 U.S.C. § 5 .............................................................. 21
13 U.S.C. § 141 .......................................................... 21
13 U.S.C. § 141(a) ................................................ 19, 20
13 U.S.C. § 141(b) ...................................................... 21
13 U.S.C. § 141(c) ...................................................... 21
13 U.S.C. § 221 ...................................................... 4, 31
46 Stat. 21 .................................................................. 19
71 Stat. 483 ................................................................ 19
90 Stat. 2459 .............................................................. 19
REGULATIONS
67 Fed. Reg. 38467 (June 4, 2002) ............................ 27
x
OTHER AUTHORITIES
Akhil Reed Amar, America’s Constitution: A
Biography 84 (2005) ............................................... 17
Nicholas Bagley, The Puzzling Presumption of
Reviewability, 127 Harv. L. Rev. 1285 (2014)....... 13
Rachel E. Barkow, Separation of Powers and the
Criminal Law, 58 Stan. L. Rev. 989 (2006) .......... 32
3 K. Davis & R. Pierce, Administrative Law Treatise
(3d ed. 1994) ............................................................. 8
Ronald M. Levin, Understanding Unreviewability in
Administrative Law, 74 Minn. L. Rev. 689
(1990) ................................................................ 13, 14
J. Madison, Federalist Papers No. 51, The Federalist
Papers 322 (1961). ................................................... 9
Elizabeth Magill & Adrian Vermeule, Allocating
Power Within Agencies, 120 Yale L.J. 1032
(2011) ...................................................................... 26
Gillian E. Metzger & Kevin M. Stack, Internal
Administrative Law, 115 Mich. L. Rev. 1239
(2017) ................................................................ 25, 26
Note, The Presumption of Regularity in Judicial
Review of the Executive Branch, 131 Harv. L. Rev.
2431 (2018) ............................................................. 34
34 S. Rep. No. 94–1256.............................................. 20
xi
U.S. Br. in Gundy v. United States, No. 17-6086 ..... 32
U.S. Code Cong. & Admin. News 1976 ..................... 20
1
INTEREST OF AMICI CURIAE
Amici are legal scholars whose focus includes
administrative and constitutional law. They have
studied, taught, and written about standing, judicial
review, jurisdiction, constitutional interpretation,
and agency discretion. They have a strong interest in
the development of the law—including the
maintenance of a careful balance between deference
to administrative agencies and judicial review of
agency action. A list of amici is set forth in an
appendix to this brief. 1
SUMMARY OF ARGUMENT
The question here is not whether the Commerce
Secretary has the statutory power to add a question
about citizenship to the census. It is, instead,
whether the Secretary adhered to the most
elementary requirements of reasoned decisionmaking
when he decided to do so. By virtue of the position
taken by the government on appeal, this Court must
also decide whether it is wholly precluded from
policing arbitrary, capricious, and pretextual
decisions by a political appointee regarding the
census questionnaire.
In some respects, this is an exceptional case. The
procedure by which the Secretary decided to add a
citizenship question to the 2020 census violated many
1 Amici state that no party’s counsel authored the brief in whole
or in part; no party’s counsel contributed money that was
intended to fund preparing or submitting the brief; and no
person—other than amici and their counsel—contributed money
intended to fund preparing or submitting the brief. All parties
have consented to the filing of this brief. See Sup. Ct. R. 37.6.
2
rules of administrative law. Rarely is an agency
action so thoroughly riddled with indicia of arbitrary
and
capricious
decisionmaking.
While
the
government insists that this was nothing more than
a policy judgment, it was a judgment purportedly
based on specific reasons. Yet those reasons collapse
on even cursory inspection—as do the government’s
claims that these reasons had anything to do with the
Secretary’s foreordained conclusion.
In other respects, though, this is an ordinary case.
The Secretary took an action that, by his own
agency’s account, will reduce response rates among
specific groups and thereby cause injury to
Respondents. The Secretary’s decision, moreover,
reversed decades of practice, violated his agency’s
own methodological standards, defied a widelyshared expert consensus, and departed from his
statutory authority. Unsurprisingly, Respondents
filed suit in federal court, contending that this agency
action violated the Administrative Procedure Act
(APA). Subsequently, when the district court found
the government had presented a fictionalized and
incomplete record, that court authorized limited
discovery to ensure it was reviewing the actual record
of the agency’s decision. And finally, the court applied
familiar administrative law principles to set the
Secretary’s decision aside.
On appeal, the government asserts that the only
errors here occurred in the district court. As we will
show, this contention is without foundation.
I. Respondents have Article III standing. The
government’s contrary argument rests on three basic
errors. First, although the government suggests that
3
any harm resulting from the addition of a citizenship
question is speculative, its own experts found (and
then testified) that reduced response rates among
noncitizens and Latino households are inevitable.
Second, the government errs in asserting that the
presence of third parties defeats traceability. Many
cases have upheld standing where plaintiffs offered
empirical proof or economic reasoning to show that
alleged wrongdoing would predictably influence third
parties in ways that cause injury. See, e.g., Davis v.
FEC, 554 U.S. 724, 729 (2008); Clinton v. City of New
York, 524 U.S. 417, 433 (1998); Lujan v. Defs. of
Wildlife, 504 U.S. 555, 561 (1992). Finally, no legal
principle prohibits Respondents from establishing a
causal chain merely because one link involves
unlawful acts, particularly when there is no dispute
that such acts will occur and cause injury. Cf. South
Dakota v. Wayfair, Inc.,138 S. Ct. 2080 (2018).
II. Section 701(a)(2) of the APA does not bar
judicial review. This narrow exception to the norm of
review applies only when there is no law to apply,
there
is
a
well-recognized
tradition
of
unreviewability, and the issue is decidedly unsuitable
for review. See Weyerhaeuser Co. v. U.S. Fish &
Wildlife Serv., 139 S. Ct. 361, 370 (2018); Lincoln v.
Vigil, 508 U.S. 182, 191 (1993); Heckler v. Chaney,
470 U.S. 821, 828 (1985). Here, the Census Act, the
Census Clause, and the Census Bureau’s own binding
standards provide law to apply. Further, there is a
long tradition of judicial review in this field, and the
Secretary’s decision is most certainly amenable to
reasoned review under the APA (as evidenced by the
decision below). That conclusion is bolstered by the
significance of the census to our system of political
representation and to the distribution of federal
4
funds among the states. Finally, precluding judicial
review would be especially improper in light of the
fact that failure to fully and truthfully answer any
questions contained on the census questionnaire is a
crime. See 13 U.S.C. § 221.
III. The district court did not abuse its broad
discretion in allowing limited extra-record discovery.
This is one of the extraordinarily rare cases in which
there was a strong evidentiary basis for suspecting
that the agency had presented a fictionalized account
of its decisionmaking process. See Citizens to Preserve
Overton Park, Inc. v. Volpe, 401 U.S. 402, 420 (1971).
As a result, considering only the agency’s selfselected record would have defeated the point of APA
review. In arguing otherwise, the government offers a
novel and incorrect legal test, conflates the standard
for discovery with the standard for substantiating an
APA claim, and improperly treats as irrelevant the
record of procedural irregularity before the district
court.
The bottom line is simple. The Secretary made a
decision with momentous implications for the health
and structure of our democracy. He did so through
procedures that fail the minimal requirement of
rationality, and then presented a fictionalized and
incomplete account of his reasons to the reviewing
court. The government now argues that this Court
lacks any power to even consider a challenge to that
decision. But the government is wrong. Under settled
precedent, this Court must hear Respondents’ claims
on the merits—and, for the reasons given by
Respondents, should affirm the judgment below.
5
ARGUMENT
I.
RESPONDENTS HAVE STANDING
Article III requires “(1) an injury in fact, (2) that
is fairly traceable to the challenged conduct of the
defendant, and (3) that is likely to be redressed by a
favorable judicial decision.” Gill v. Whitford, 138
S. Ct. 1916, 1929 (2018). Traceability exists where
there is a “causal connection between the injury and
the conduct complained of.” Lujan v. Defs. of Wildlife,
504 U.S. 555, 560 (1992). This is a lesser showing
than proximate cause. See Lexmark Int’l, Inc. v.
Static Control Components, Inc., 572 U.S. 118, 134
n.6 (2014).
Here, the government mistakenly contends that
Respondents cannot show traceability because any
injury resulting from an underreporting of residents
would be fairly attributable “only to the actions of
individuals who unlawfully refuse to truthfully and
completely fill out and return the census form.” U.S.
Br. 17. This argument rests on three related errors.
First, it gets the facts wrong. Although the
government suggests that it would be speculative to
think any injury will occur, that position is at odds
with the record that the Census Bureau meticulously
compiled, the testimony that the government’s expert
offered at trial, and the remainder of the evidence
below. It takes chutzpah for the government to
dispute here the very factual conclusion that its own
experts reached without any credible refutation.
6
To recap: Following the Department of Justice’s
“formal request” to add a citizenship question to the
2020 census, Census Bureau experts produced a
series of memoranda assessing the likely impact of
that proposal. Each confirmed that adding the
question to the census would inevitably lead to a
material decline in response rates among noncitizens
and Latino households. See Pet. App. 42a–58a, 141a–
44a. External stakeholders, including the Census
Scientific Advisory Committee and the American
Sociological Association, wrote to the agency with the
same conclusion. The Commerce Secretary was left to
search—fruitlessly—for any outside group willing to
speak in favor of his proposal. Id. at 58a–63a.
The evidence at trial confirmed what the Census
Bureau already knew. The government’s own expert
“testified to the soundness of the Census Bureau’s
analyses and conclusion that adding a citizenship
question to the 2020 census would result in a
differential decline in self-response rates among
noncitizen households.” Id. at 144a. He described an
August 2018 memorandum from the Census Bureau
as the “best analysis” available; it included a
“conservative estimate” that the citizenship question
would result in a 5.8 percent differential decline in
response rates among noncitizen households. Id. at
145a. Respondents’ three experts concurred in this
assessment. Even the government’s own lawyer had
to admit that there was “‘credible quantifiable
evidence’ that ‘the citizenship question could be
expected to cause a decline in self-response.’” Id. at
150a.
7
Thus, according to the government itself, the
decision to add a citizenship question will predictably
cause a reduced response rate among specific groups.
This conclusion does not rank as speculative.
Second, the government wrongly insists that the
presence of third parties necessarily breaks the
causal chain between the Secretary’s decision to add
a citizenship question and Respondents’ injuries.
A wall of Supreme Court precedent forecloses this
contention. Those cases include campaign finance
decisions recognizing injury-in-fact mediated through
the predictable conduct of third parties. For example,
in Davis v. FEC, 554 U.S. 724, 734–35 (2008), this
Court held that a political candidate had Article III
standing even though he would be injured only if he
spent a certain amount of money, his opponent (a
third party) decided to refrain from any comparable
self-funding, and his opponent (again, a third party)
then decided to avail himself of expanded
contribution limits triggered by the candidate’s
spending.
In addition, the entire jurisprudence of Article III
standing for antitrust and unfair competition claims
presumes that courts may use empirical data and
economic models to trace injury through decisions by
third parties. See Lexmark, 134 S. Ct. at 1391 (noting
that injury in Lanham Act cases involves an
“intervening step of consumer deception,” but this
third-party step “is not fatal”); TrafficSchool.com,
Inc. v. Edriver Inc., 653 F.3d 820, 825 (9th Cir. 2011)
(“The plaintiff can prove his injury using actual
market experience and probable market behavior.
8
This makes sense, because proving a counterfactual
is never easy, and is especially difficult when the
injury consists of lost sales that are predicated on the
independent decisions of third parties; i.e., customers.
A plaintiff who can’t produce lost sales data may
therefore establish an injury by creating a chain of
inferences showing how defendant’s false advertising
could harm plaintiff's business.” (quotation marks
and citations omitted)); NicSand, Inc. v. 3M Co., 507
F.3d 442, 449 (6th Cir. 2007) (en banc) (finding that
3M caused injury to its competitor when 3M offered
better—and allegedly illegal—deals to third-party
customers).
In a similar vein, this Court “routinely recognizes
probable
economic
injury
resulting
from
governmental actions that alter competitive
conditions as sufficient to satisfy the Article III
‘injury-in-fact’ requirement.” Clinton v. City of New
York, 524 U.S. 417, 433 (1998) (alterations omitted)
(quoting 3 K. Davis & R. Pierce, Administrative Law
Treatise 13–14 (3d ed. 1994)). Time and again, the
Court has held that businesses may challenge
government
decisions
that
advantage
their
competitors—even where those decisions would cause
injury only if third-party market participants
independently decide to follow economic incentives
and patronize the businesses’ competitors. See, e.g.,
Ass’n of Data Processing Serv. Orgs., Inc. v. Camp,
397 U.S. 150, 154 (1970); Sherley v. Sebelius, 610
F.3d 69, 73–74 (D.C. Cir. 2010); Adams v. Watson, 10
F.3d 915, 921–25 (1st Cir. 1993).
Simply put, even when “standing depends on the
unfettered choices made by independent actors not
9
before the courts,” traceability exists when the
plaintiff “adduce[s] facts showing that those choices
have been or will be made in such manner as to
produce causation and permit redressability of
injury.” Lujan, 504 U.S. at 562 (quotation marks
omitted). Here, Respondents have carried that
burden many times over. The evidence before the
district court decisively demonstrates that adding a
citizenship question will materially and predictably
reduce response rates in clearly-defined populations.
Tracing that outcome to the agency action does not
call for speculation; it requires only a review of the
record.
Finally, the government asserts—without any
citation—that regardless of what the evidence shows,
the law somehow forbids this Court from tracing
causation through third-party acts when those acts
are unlawful. U.S. Br. 18. (noting that it is unlawful
not to fully and truthfully complete the census).
This is a perplexing argument. Article III takes
the world as it is; not as the government (or anyone
else) might wish it to be. See Lujan, 504 U.S. at 561
(requiring plaintiffs to demonstrate standing “in the
same way as any other matter on which the plaintiff
bears the burden of proof”). Indeed, the Constitution
as a whole was written with a clear-eyed recognition
that people aren’t angels. See J. Madison, Federalist
Papers No. 51, The Federalist Papers 322 (1961).
This Court, too, has based important decisions on
the premise that people break the law. Consider
South Dakota v. Wayfair, Inc., which overruled
precedent requiring a seller’s physical presence in a
10
state before that state could tax the seller. 138 S. Ct.
2080 (2018). In overruling those cases—a step not
taken lightly—the Court emphasized that “the
physical presence rule results in significant revenue
losses to the States.” Id. at 2092. The reason for this
revenue loss was that on-line consumers rarely pay
their home states’ use taxes, despite being legally
required to do so. Although several Justices sharply
disputed the decision to abandon precedent, nobody—
not the majority, not the dissent, not the United
States as amicus—objected to assessing that
precedent on the basis that it caused harm by leading
third parties to break the law.
Here, there is overwhelming proof that adding a
citizenship question to the 2020 census will cause
response rates to decline in selected populations.
Rather than dispute this evidence, the government
conveniently omits it. But when evaluated against
the familiar requirements of Article III—which do
not contain the government’s manufactured
limitations—the
evidence
plainly
supports
Respondents’ standing.
II.
THIS DECISION IS NOT COMMITTED TO
AGENCY DISCRETION BY LAW
The government sweepingly asserts that federal
courts are statutorily prohibited from reviewing any
decisions by the Secretary regarding the “form and
content” of the census questionnaire. See U.S. Br. 21–
28. This argument is meritless. It not only
misunderstands the APA, but also disregards the
legal standard provided by the Census Act, the
Census Clause, and the Census Bureau’s own binding
11
rules. Moreover, the government’s position bottoms
out on a remarkable claim: that even if the Secretary
fails to properly notify Congress of changes to the
census, no court can hear any case challenging his
decisions regarding one of the most fundamental
instruments of political representation and funding
allocation in our constitutional order. This Court
should repudiate that suggestion, which defies text,
history, and precedent.
A. Section 701(a)(2) Creates A Narrow
Exception from Judicial Review
For well over a century, Congress has entrusted
administrative
agencies
with
wide-ranging
regulatory powers. But it has not given agencies carte
blanche. Instead, to “protect core constitutional and
democratic values,” it has firmly required “that
agencies exercise only the authority that Congress
has given them, that they exercise that authority
reasonably, and that they follow applicable
procedures.” Pet. App. 13a. In short, through the
APA, Congress has ensured “that agencies remain
accountable to the public they serve.” Id.
Central to the APA’s safeguards is a requirement
of “reasoned decisionmaking.” Motor Vehicle Mfrs.
Assn. of United States, Inc. v. State Farm Mut.
Automobile Ins. Co., 463 U.S. 29, 52 (1983). Not only
must an agency’s result be within the scope of its
authority, but the process by which it reaches that
result must be logical and rational. See Encino
Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2125
(2016) (“One of the basic procedural requirements of
administrative rulemaking is that an agency must
12
give adequate reasons for its decisions.”). To that end,
the APA authorizes courts to “hold unlawful and set
aside agency action, findings, and conclusions found
to be . . . arbitrary [or] capricious.” 5 U.S.C.
§ 706(2)(A).
To be sure, the APA does not authorize courts to
“substitute [their] judgment for that of an agency.”
Citizens to Preserve Overton Park v. Volpe, 401 U.S.
402, 416 (1971). But “courts retain a role, an
important one, in ensuring that agencies have
engaged in reasoned decisionmaking.” Judulang v.
Holder, 565 U.S. 42, 53 (2011); see also F.C.C. v. Fox
Television Stations, Inc., 556 U.S. 502, 537 (2009)
(Kennedy, J., concurring in part and concurring in
the judgment) (“Congress passed the [APA] to ensure
that agencies follow constraints even as they exercise
their powers. One of these constraints is the duty of
agencies to find and formulate policies that can be
justified by neutral principles and a reasoned
explanation. To achieve that end, Congress confined
agencies’ discretion and subjected their decisions to
judicial review.”).
Section 701(a)(2) creates an exception to the norm
of judicial review for “agency action committed to
agency discretion by law.” But “on its face, [this]
section does not obviously lend itself to any particular
construction.” Heckler v. Chaney, 470 U.S. 821, 828
(1985). Moreover, if read broadly, it would collide
with Section 706(2)(A), which requires courts to set
aside agency action that is “an abuse of discretion.”
See Weyerhaeuser Co. v. U.S. Fish & Wildlife Serv.,
139 S. Ct. 361, 370 (2018) (“A court could never
determine that an agency abused its discretion if all
13
matters committed
unreviewable.”). 2
to
agency
discretion
were
This Court has therefore invoked a “presumption
of review” and has “read the exception in § 701(a)(2)
quite narrowly.” Weyerhaeuser, 139 S. Ct. at 370; see
also Abbott Labs. v. Gardner, 387 U.S. 136, 140
(1967). This presumption does not rest on doubt
about the integrity or credibility of particular
officials.
Instead,
it
reflects
a
considered
understanding of the legislative plan: “We need only
know—and know that Congress knows—that legal
lapses and violations occur, and especially so when
they have no consequence. That is why this Court has
so long applied a strong presumption favoring
judicial review of administrative action.” Mach
Mining, LLC v. E.E.O.C., 135 S. Ct. 1645, 1652–53
(2015). 3
Consistent with the presumption of review, and as
classically articulated in Overton Park, Section
701(a)(2) is a “very narrow exception” that precludes
review only “in those rare instances where ‘statutes
are drawn in such broad terms that in a given case
there is no law to apply.’” 401 U.S. at 410 (quotation
marks omitted). In other words, Section 701(a)(2) is
2 “The
APA’s legislative history provides little help on this
score.” Heckler, 470 U.S. at 829; see Ronald M.
Levin, Understanding Unreviewability in Administrative Law,
74 Minn. L. Rev. 689, 695 (1990).
3 Though not all amici endorse the presumption of reviewability,
they all agree that “agency action is ‘committed to agency
discretion by law’ in only the rarest of circumstances.” Nicholas
Bagley, The Puzzling Presumption of Reviewability, 127 Harv.
L. Rev. 1285, 1290 n.21 (2014).
14
restricted to “those rare circumstances 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.” Lincoln v. Vigil, 508
U.S. 182, 191 (1993) (quotation marks omitted).
This rule rests on the premise that courts cannot
assess whether an agency adhered to statutory
criteria when the relevant statute lacks any
discernible legal standard. See id. But even where a
statute is written with extremely broad language, it
is still possible for a court to assess whether an
agency misunderstood key facts, departed from
settled prior practice without a rational basis, or
otherwise engaged in a clear error of law or logic. See
Levin, Unreviewability, 74 Minn. L. Rev. at 708; see
also State Farm, 463 U.S. at 43. While broad statutes
may permit many possible policy judgments that are
unamenable to review, it does not follow that they
should be treated as precluding any review of an
agency’s reasoning on its own terms.
Perhaps for this reason, the Court’s opinions
addressing Section 701(a)(2) have focused on the
existence of a recognized tradition of unreviewability,
rather than asking only whether the statutory text is
broadly worded. As the Court pointedly emphasized
earlier this Term, “[t]he few cases in which we have
applied the § 701(a)(2) exception involved agency
decisions that courts have traditionally regarded as
unreviewable.” Weyerhaeuser, 139 S. Ct. at 370
(emphasis added); see also Lincoln, 508 U.S. at 192
(“Over the years, we have read § 701(a)(2) to preclude
judicial review of certain categories of administrative
decisions that courts traditionally have regarded as
15
‘committed to agency discretion.’”(emphasis added)).
The Court has also considered whether the nature of
the agency action raises practical questions about the
competence or ability of courts to engage in judicial
review. See, e.g., ICC v. Locomotive Engineers, 482
U.S. 270, 282 (1987); Heckler, 470 U.S. at 831.
Applying these considerations, the Court has held
that Section 701(a)(2) precludes review of agency
decisions regarding the allocation of funds from a
lump-sum congressional appropriation, see Lincoln
508 U.S. at 191, decisions not to reconsider final
agency actions, see ICC, 482 U.S. at 282, decisions to
fire CIA employees based on the national interest, see
Webster v. Doe, 486 U.S. 592, 600 (1988), and
decisions
against
instituting
enforcement
proceedings, see Heckler, 470 U.S. at 832. In three of
these cases, the Court discussed at length the
unbroken line of judicial and academic authority
expressly stating that review is prohibited and
unworkable. See Lincoln, 508 U.S. at 192–94; ICC,
492 U.S. at 279–81; Heckler, 470 U.S. at 829–34. The
fourth case—Webster—was based on this Court’s
traditional wariness of second-guessing the executive
branch on matters of national security. See Lincoln,
508 U.S. at 191–92 (“In Webster, . . . we held that
§ 701(a)(2) precludes judicial review of a decision by
the Director of Central Intelligence to terminate an
employee in the interests of national security, an
area of executive action ‘in which courts have long
been hesitant to intrude.’” (quoting Franklin v. Mass,
505 U.S. 788, 819 (1992) (Stevens, J., concurring in
part and concurring in the judgment))); Webster, 486
U.S. at 607–11 (Scalia, J., dissenting).
16
Taken together, the Court’s precedents applying
Section 701(a)(2) hold that the APA precludes review
only where a statute lacks any discernible standard,
there
is
a
well-recognized
tradition
of
unreviewability, and the issue is unsuitable for
judicial review. It is therefore unsurprising that the
four cases denying review under Section 701(a)(2) all
involved requests for courts to interfere with highly
discretionary aspects of internal agency operations—
which enforcement actions to bring, where to allocate
lump sum appropriations, when to reopen final
actions, and whom to trust with sensitive national
security data. In those realms, separation of powers
concerns are at their zenith, judicial competence is at
its nadir, and there is a long, explicit history of
unreviewability. This Court therefore applied Section
701(a)(2), precluding review unless Congress
expressly provides for it.
Beyond these “rare circumstances,” however, the
presumption of judicial review applies with full force.
Lincoln, 508 U.S. at 191. Review is the norm, not the
exception. See Mach Mining, 135 S. Ct. at 1651.
Agencies must adhere to the APA’s requirement of
reasoned decisionmaking, and generally must answer
to the courts when they fail to do so. See Franklin,
505 U.S. at 796 (“The APA sets forth the procedures
by which federal agencies are accountable to the
public and their actions subject to review by the
courts.”).
17
B. Secretary Ross’s Decision to Add a
Citizenship Question Is Not Exempt
from Review Under Section 701(a)(2)
Designing, administering, and calculating results
from the census is a vital national undertaking. “The
population count derived from that effort is used not
only to apportion Representatives among the states,
but also to draw political districts and allocate power
within them. And it is used to allocate hundreds of
billions of dollars in federal, state, and local funds . . .
Even small deviations from an accurate count can
have major implications for states, localities, and the
people who live in them.” Pet. App. 6a.
Given the significance of the census, the Framers
labored over it, choosing language “with precision”
and requiring an “actual Enumeration.” Utah v.
Evans, 536 U.S. 452, 489 (2002) (Thomas, J.,
concurring in part and dissenting in part). “Future
congressmen”—and, it seems safe to say, future
presidential
administrations—would
thus
be
prevented from “devising some other sly formula to
entrench themselves against demographic shifts.”
Akhil Reed Amar, America’s Constitution: A
Biography 84 (2005). 4
In light of the towering importance of the census
in the constitutional plan, the apportionment of
4 Because the Electoral College is affected by the census results,
the Framers’ fear of self-dealing also applies to the President.
This is yet another reason why it could be troubling to conclude
that Congress alone may check improper decisionmaking by the
Commerce Secretary: the President’s veto power might allow
even irrational decisions to stand if they work to his benefit.
18
political representation at every level, and the
distribution of benefits across states, it would be
anomalous to conclude that a single political
appointee wields unreviewable discretion to
arbitrarily alter its content. That is particularly true
where the relevant appointee violated the very
statutory notice provisions designed to allow
Congress an opportunity to raise and address
concerns about the census. See Pet. App. 272a–84a;
see id. at 128a (observing that Secretary Ross also
gave “‘admittedly imprecise,’ if not false, testimony
before Congress”). The legitimacy of our political
system depends in no small part on an accurate
population count. Allowing anyone judicially
unfettered discretion to modify the census on grounds
lacking any basis in fact or law—and in ways that
will materially impair its accuracy—would be
profoundly imprudent.
Consistent with that reality, Section 701(a)(2)
does not preclude judicial review. Decisions about the
form and content of the census are radically
dissimilar from the discretionary decisions about
internal agency operations addressed in Heckler,
Webster, ICC, and Lincoln. That conclusion is
confirmed by a review of the relevant statutory and
constitutional provisions, traditions of judicial
review, and the feasibility of APA review. It is also
bolstered by cases that weigh against allowing
executive officials unbounded discretion to define the
substance of a federal crime.
19
1. There Is Law to Apply Here
The Census Act provides that the Secretary “shall
. . . every 10 years . . . take a decennial census of
population . . . in such form and content as he may
determine, including the use of sampling procedures
and special surveys.” 13 U.S.C. § 141(a). Seizing on
the phrase “as he may determine,” the government
contends that Section 701(a)(2) applies because there
is no standard to guide the Secretary’s
determinations—and thus no standard against which
to judge them. See U.S. Br. 21–24. That is incorrect.
a. The Census Act
To start, the Census Act itself provides sufficient
law to enable review. See Webster, 486 U.S. at 600
(calling for “careful examination of the statute on
which the claim of agency illegality is based”).
That is true even abiding the government’s
narrow focus on Section 141(a). As enacted in 1929,
this provision stated, “That a census of population . . .
shall be taken by the Director of the Census in the
year 1930 and every ten years thereafter.” 46 Stat.
21. A few decades later, Section 141(a) was modified
to read, “The Secretary shall, in the year 1960 and
every ten years thereafter, take a census of
population.” 71 Stat. 483. Not until 1976 did
Congress add the phrase upon which the government
now places total reliance: “in such form and content
as he may determine.” 90 Stat. 2459. But as Justice
Stevens explained 27 years ago, there is no warrant
for concluding that this addition was meant to
preclude review under Section 701(a)(2):
20
To the extent that the argument for
unreviewability depends on this phrase, it
requires the conclusion that when
Congress amended the statute in 1976, it
intended to effect a new, unreviewable
commitment to agency discretion. There is
no support for this position whatsoever.
The main purpose of the 1976 amendment
was to provide for a mid-decade census to
be used for various purposes (not including
apportionment). See S. Rep. No. 94–1256,
pp. 2–3 (1976), U.S. Code Cong. & Admin.
News 1976, p. 5463. The legislative history
evidences no intention to expand the scope
of the Secretary’s discretion . . . Indeed,
other portions of the Act limited the
Secretary’s authority by requiring, if
feasible, the use of sampling in the
nonapportionment census. 90 Stat. 2464,
13 U.S.C. § 195.
Franklin, 505 U.S. at 817 n.16, (Stevens, J.,
concurring in the judgment). 5
5 In its entirety, the Senate Report on the new language in 13
U.S.C. § 141(a) read as follows: “Subsection (a) of section 141
essentially rewords the existing subsection, adding the term
‘decennial census of population’ so as to distinguish this census,
to be taken in 1980 and every ten years thereafter, from the
mid-decade census, which is to be taken in 1985 and every ten
years thereafter. New language is added at the end of the
subsection to encourage the use of sampling and surveys in the
taking of the decennial census.” S. Rep. No. 94–1256, at 4, U.S.
Code Cong. & Admin. News 1976, p. 5466.
21
The government reads the current text of Section
141(a) in a void. When set in historical context, the
statute does not reveal any legislative desire to vest
unreviewable power in the Secretary. See Dickson v.
Sec’y of Def., 68 F.3d 1396, 1401 (D.C. Cir. 1995)
(“When a statute uses a permissive term such as
‘may’ rather than a mandatory term such as ‘shall,’
this choice of language suggests that Congress
intends to confer some discretion on the agency . . . .
However, such language does not mean the matter
is committed exclusively to agency discretion.”).
Any doubt on that score is dispelled by a review of
the broader statutory scheme. See Bennett v. Spear,
520 U.S. 154, 175 (1997). Section 141(a) itself
imposes a mandatory duty on the Secretary by using
the word “shall.” See Kingdomware Techs., Inc. v.
United States, 136 S. Ct. 1969, 1977 (2016); Shapiro
v. McManus, 136 S. Ct. 450, 454 (2015). So, too, do
many other provisions of the Census Act. See, e.g., 13
U.S.C. §§ 5, 141(b), (c). Moreover, “the relationship of
the census provision contained in 13 U.S.C. § 141 and
the apportionment provision contained in 2 U.S.C.
§ 2a demonstrates that the Secretary’s discretion is
constrained by the requirement that she produce a
tabulation of the ‘whole number of persons in each
State.’” Franklin, 505 U.S. at 819 (Stevens, J.,
concurring in the judgment) (quoting § 2a(a)). 6
Given these commands, and the history of Section
401(a), it cannot be said that the Census Act as a
6 For example, the Commerce Secretary would surely violate the
Census Act if he modified the census questionnaire to ask only a
single question: “What’s your favorite color?”
22
whole “exudes deference” to the Secretary. Webster,
486 U.S. at 600. Although it vests him with policy
discretion in administering certain aspects of the
census, including its form and content, the Act
imposes several mandatory obligations that apply
directly to designing and administering the census.
See Bd. of Trustees of Knox Cty. (Indiana) Hosp. v.
Sullivan, 965 F.2d 558, 563 (7th Cir. 1992). Further,
as evidenced by its relationship to Section 2a, the Act
is not neutral or indifferent as to how the Secretary
exercises his discretion: 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 820 (Stevens, J., concurring in
the judgment). This is a meaningful standard against
which exercises of discretion can be measured. See
Overton Park, 401 U.S. at 410.
b. The Census Clause
In addition to the Census Act, the Constitution
itself provides a legal standard sufficient to support
APA review. See Wisconsin v. City of New York, 517
U.S. 1, 18–20 (1996) (explaining that the Census Act
delegates Congress’s broad constitutional authority
over the census to the Secretary). Article I, Section 2
of the Constitution, as modified by the Fourteenth
Amendment, provides that Members of the House of
Representatives “shall be apportioned among the
several states according to their respective numbers,
counting the whole number of persons in each
State . . . .” To ensure that the apportionment
remains representative of the current population, the
Constitution further requires that a census be taken
23
at least every 10 years: “The actual Enumeration
shall be made within three Years after the first
Meeting of the Congress of the United States, and
within every subsequent Term of ten Years, in such
manner as they shall by Law direct.” U.S. Const.,
Art. I, § 2, cl. 3.
In Wisconsin v. City of New York, this Court held
that “the Secretary’s conduct of the census” must be
“‘consistent with the constitutional language and the
constitutional goal of equal representation.’” 517 U.S.
at 19–20 (quoting Franklin, 505 U.S. at 804). It
added that the Secretary’s decisions must bear a
“reasonable relationship to the accomplishment of an
actual enumeration of the population, keeping in
mind the constitutional purpose of the census.” Id. at
20. More recently, while recognizing that the
Framers did not establish “the precise method by
which Congress was to determine the population,”
this Court emphasized that many constitutional
design choices reflected in the Census Clause
“suggest a strong constitutional interest in accuracy.”
Utah, 536 U.S. at 478.
“[I]t must follow that when the Census Bureau
unreasonably compromises the distributive accuracy
of the census, it may violate the Constitution.” La
Unión del Pueblo Entero v. Ross, 353 F. Supp. 3d 381,
393 (D. Md. 2018). “[T]he Constitution imparts a
judiciable standard on Congress when conducting an
‘actual Enumeration’—it must bear ‘a reasonable
relationship to the accomplishment of an actual
enumeration of the population.’ And that standard is,
in essence, what Congress has passed along to the
Secretary.” Kravitz v. U.S. Dep’t of Commerce, 336
24
F. Supp. 3d 545, 568 (D. Md. 2018) (citation omitted).
“[A] ‘reasonable relationship’ standard imposes
deferential yet concrete limitations on the Secretary's
exercise of discretion. For example, one would expect
the Secretary could be precluded from printing all
census questionnaires in Greek or in illegible font.”
California v. Ross, No. 18 Civ. 1865, 2018 WL
7142099, at *10 (N.D. Cal. Aug. 17, 2018) (Seeborg,
J.).
This standard is manageable and amenable to
enforcement through APA review. Cf. Franklin, 505
U.S. at 801 n.2 (citing Dep’t of Commerce v. Montana,
503 U.S. 442, 456–459 (1992)). While the government
seeks to confine Wisconsin and Utah to calculation
methodology challenges, nothing in the language or
logic of those opinions suggests any such limitation
on the general principles they articulate. To the
contrary, “reviewing the ‘actual Enumeration’
necessarily involves looking into the ‘Manner’ in
which the count is conducted.” Kravitz, 336 F. Supp.
3d at 563; accord Wisconsin, 517 U.S. at 13 (“In
recent years, we have twice considered constitutional
challenges to the conduct of the census.” (emphasis
added)). The Constitution thus affords a sufficiently
clear legal standard to facilitate reasoned judicial
review and defeat application of Section 701(a)(2).
c. Internal Agency Standards
The OMB’s Statistical Policy Directives and the
Census Bureau’s own Statistical Quality Standards
supply a third, distinct source of law to apply, thus
permitting review under the APA. See Pet. App.
25
302a–04a
materials).
(explaining
these
methodological
“To determine whether there is ‘law to apply’ that
provides ‘judicially manageable standards’ for
judging an agency’s exercise of discretion, the courts
look to the statutory text, the agency’s regulations,
and informal agency guidance that govern the
agency’s challenged action.” Salazar v. King, 822
F.3d 61, 76 (2d Cir. 2016) (citations omitted). “Agency
regulations and guidance can provide a court with
law to apply because, [a]s the Supreme Court noted
‘where the rights of individuals are affected, it is
incumbent upon agencies to follow their own
procedures. This is so even where the internal
procedures are possibly more rigorous than otherwise
would be required.’” Id. (internal citation omitted)
(quoting Morton v. Ruiz, 415 U.S. 199, 235 (1974)).
Put differently, “[t]hough the agency’s discretion is
unfettered at the outset, if it announces and follows—
by rule or by settled course of adjudication—a
general policy by which its exercise of discretion will
be governed, an irrational departure from that policy
(as opposed to an avowed alteration of it) could
constitute action that must be overturned as
‘arbitrary, capricious, or an abuse of discretion.”
I.N.S. v. Yueh–Shaio Yang, 519 U.S. 26, 32 (1996).
The notion that an agency can structure and thus
constrain its discretion by committing to specific
substantive or procedural limitations on its own
decisionmaking is a familiar one. See, e.g., Gillian E.
Metzger & Kevin M. Stack, Internal Administrative
Law, 115 Mich. L. Rev. 1239, 1248 (2017) (“The most
commonly
recognized
forms
of
internal
26
administrative law are the processes, guidelines, and
policy issuances that an administrative agency
adopts to structure the actions of its own officials.”);
Elizabeth Magill & Adrian Vermeule, Allocating
Power Within Agencies, 120 Yale L.J. 1032, 1064
(2011) (“In such cases, the agency has voluntarily
adopted a rule that constrains its own discretion . . .
If the agency adopts the rule in the proper way, then
. . . a court will enforce the rule against the agency in
the future.”). 7
Here, a “substantial body of federal regulations
and Census Bureau policies also provide manageable
standards against which the Secretary’s actions can
be measured.” California, 2018 WL 7142099, at *13.
“In particular, the Bureau’s own Statistical Quality
Standards guide the process—from planning to
collecting to analyzing and reporting—of producing
Bureau information products,” including questions
for the census form. Ibid. “These internal agency
standards provide ‘law to apply’ in evaluating the
Secretary’s exercise of his discretion.” Ibid.; see also
Fox Television Stations, Inc., 556 U.S. at 515 (“An
agency may not . . . depart from a prior policy sub
silentio or simply disregard rules that are still on the
books.”); Yueh-Shaio Yang, 519 U.S. at 32
7 Amici disagree over the extent to which internal
agency law
should be judicially enforceable under the APA, but they agree
that it is used to support reviewability under current
doctrine. See Metzger & Stack, Internal Administrative Law, at
1281-86, 1295-97.
27
(prohibiting an “irrational departure” from agency
policy). 8
2. There Is No Tradition Precluding
Judicial Review
The Court’s decisions addressing Section 701(a)(2)
have assigned substantial—often determinative—
weight to the existence of a longstanding, recognized
tradition of unreviewability. See Weyerhaeuser, 139
S. Ct. at 370; Lincoln, 508 U.S. at 192; ICC, 482 U.S.
at 282; Heckler, 470 U.S. at 829–32.
No such tradition supports the application of
Section 701(a)(2) here. As Justice Stevens observed in
Franklin, “[t]he great weight of authority supports
the view that the conduct of the census is not
‘committed to agency discretion by law.’” 505 U.S. at
819 n.19 (Stevens, J., concurring in the judgment)
(citing Carey v. Klutznick, 637 F.2d 834 (2d. Cir.
1980); New York v. United States Dept. of
Commerce, 739 F. Supp. 761 (E.D.N.Y. 1990); New
York v. United States Dept. of Commerce, 713
F. Supp. 48 (E.D.N.Y. 1989); Cuomo v. Baldrige, 674
F. Supp. 1089 (S.D.N.Y. 1987); Willacoochee v.
Baldrige, 556 F. Supp. 551 (S.D. Ga. 1983); Carey v.
Klutznick, 508
F.
Supp.
404
(S.D.N.Y.
1980); Philadelphia v. Klutznick, 503 F. Supp. 663
(E.D. Pa. 1980); Young v. Klutznick, 497 F. Supp.
1318 (E.D. Mich. 1980); Camden v. Plotkin, 466
F. Supp. 44 (D.N.J. 1978)); see also Kravitz, 336
F. Supp. 3d at 562 (“[A] number of lower courts have
8 The Statistical Quality Standards were the product of a formal
rulemaking-type process. See 67 Fed. Reg. 38467 (June 4, 2002).
28
also reviewed the legality of Census Bureau actions.”
(collecting cases))).
The government seeks to escape the weight of
these cases by noting that none addressed the precise
question at issue here. See U.S. Br. 23–24. But many
of them addressed challenges to decisions by the
Commerce Secretary under Section 141(a)—the very
same statute whose text supposedly “exudes
deference” to the agency. And no case even hinted at
any lurking exception for suits alleging that the
Secretary violated the APA or Census Clause in
altering the content of the census form. Unlike in
Lincoln, ICC, Heckler, and Webster, where courts had
long articulated an express unwillingness to review
the relevant kind of agency action, here courts have
long engaged in precisely the kind of review that
Respondents seek—and have done so under the same
provisions Respondents invoke. See Franklin, 505
U.S. at 818–19 (Stevens, J., concurring in the
judgment) (“[T]he Court has limited the exception to
judicial review provided by 5 U.S.C. § 701(a)(2) to
cases involving national security . . . or those seeking
review of refusal to pursue enforcement actions.
These are areas in which courts have long been
hesitant to intrude. The taking of the census is not
such an area of traditional deference.” (citations
omitted)).
There are good reasons for the manifest judicial
unwillingness to abandon this field. “The open nature
of the census enterprise and the public dissemination
of the information collected are closely connected
with our commitment to a democratic form of
government. The reviewability of decisions relating to
29
the conduct of the census bolsters public confidence
in the integrity of the process and helps strengthen
this mainstay of our democracy.” Id. at 818; see also
Wisconsin, 517 U.S. at 5–6 (describing the
implications of the census for apportioning House
seats and Electoral College votes, dispensing federal
funds to state governments, and drawing intrastate
political districts).
3. Judicial Review Is Workable and
Essential to Prevent Abuses
The government contends that judicial review is
unworkable because of the many policy judgments
and trade-offs involved in designing the census form.
See U.S. Br. 24. That’s simply untrue. As the district
court demonstrated in its thorough opinion, this case
involves exactly “the sort of claim that federal courts
routinely assess when determining whether to set
aside an agency decision as an abuse of discretion
under § 706(2)(A).” Weyerhaeuser, 139 S. Ct. at 371.
Indeed, Respondents’ challenges here raise run-ofthe-mill State Farm issues: Did the agency consider
all aspects of the problem? Did it study the relevant
evidence and arrive at a decision rationally supported
by that evidence? Did it comply with all applicable
procedures and substantive laws? Did it articulate
the facts and reasons (the real reasons) for its
decision? The proof of the pudding is in the eating—
and here, the opinion below, as well as the opinions of
other district courts, demonstrates the feasibility of
applying APA review in a manner that respects the
Secretary’s broad discretion while requiring that he
respect elementary rules of reasoned decisionmaking.
30
As explained above, actions by the Secretary that
substantially decrease accuracy without any
offsetting policy benefit are inconsistent with the
Census Act and Census Clause. Where such actions
rest on clear errors of fact, involve unexplained
departures from prior practice, violate the agency’s
own rules or other statutory mandates, or are based
on demonstrably pretextual reasons, they violate the
APA. There is a line between exercising broad policy
discretion, on the one hand, and arbitrary, irrational,
or pretextual decisionmaking, on the other. Here,
there is powerful evidence that the Secretary
repeatedly and knowingly crossed that line. As the
district court concluded:
He failed to consider several important
aspects of the problem; alternately
ignored,
cherry-picked,
or
badly
misconstrued the evidence in the record
before him; acted irrationally both in light
of that evidence and his own stated
decisional criteria; and failed to justify
significant departures from past policies
and practices—a veritable smorgasbord of
classic, clear-cut APA violations. On top of
that, Secretary Ross acted without
observing procedures required by law,
including a statute requiring that he
notify Congress of the subjects planned for
any census at least three years in advance.
And finally, the evidence establishes that
Secretary Ross’s stated rationale, to
promote
VRA
enforcement,
was
pretextual—in other words, that he
31
announced his decision in a manner that
concealed its true basis rather than
explaining it, as the APA required him to
do.
Pet. App. 10a; see also id. at 284a–335a; California v.
Ross, No. 18 Civ. 1865, 2019 WL 1052434, at *61–*66
(N.D. Cal. Mar. 6, 2019); Kravitz v. U.S. Dep’t of
Commerce, 355 F. Supp. 3d 256, 267 (D. Md. 2018).
Particularly where the Secretary plays fast and
loose with congressional notification rules, the
judiciary may be the only branch of government
capable of policing his compliance with requirements
of basic reasonableness. That isn’t a terribly high
standard, and it will leave room for controversial
judgments, but it’s the very least the nation can
expect of political appointees vested with so much
power over something so important.
4. Judicial Review Is a Vital Check
Because Failure to Complete the
Census Is a Federal Crime
Under 13 U.S.C. § 221, residents commit a federal
crime if they fail to fully and truthfully answer the
census questionnaire. In the government’s view, the
Census Act vests the Secretary with legally
unbounded, judicially unreviewable discretion to add
inquiries to that questionnaire. Put differently, the
government asserts that the Secretary has limitless
power to criminalize failing to answer whatever
questions he sees fit to include on the census. That
position raises grave concerns about executive branch
overreach in the criminal sphere.
32
To be clear, Congress undoubtedly enjoys broad
leeway to delegate to administrative agencies, which
possess the expertise to implement general policies
via rulemaking, adjudication, and other procedures.
Such delegation is a central and desirable part of
modern democratic governance. Further, it is not
unusual for Congress to give agencies a role in the
process of defining federal criminal law; for example,
Congress has written many statutes that vest
agencies with the authority to prescribe substantive
requirements in rules and regulations, while
separately making it a crime to violate those
requirements. See U.S. Br. 45 & nn.10–11, in Gundy
v. United States, No. 17-6086.
But not all delegations are created equal. This
Court has long emphasized Congress’s primary role
in defining crimes. See United States v. Kozminski,
487 U.S. 931, 949 (1988); United States v. Evans, 333
U.S. 483, 486 (1948). It has also denied Chevron
deference to executive branch interpretations of
criminal laws, emphasizing the need for a judicial
check. See United States v. Apel, 571 U.S. 359, 369
(2014); Abramski v. United States, 573 U.S. 169,191
(2014). Simply put, unconstrained discretion for any
executive official to unilaterally demarcate criminal
liability is in clear tension with our scheme of checks
and balances. See Rachel E. Barkow, Separation of
Powers and the Criminal Law, 58 Stan. L. Rev. 989,
990 (2006).
In light of these principles, the intrusion on
liberty caused by an agency action that affects the
substance of a federal crime decisively favors
33
allowing judicial review. Just imagine if the
Secretary added questions about firearm ownership,
prior drug use, HIV status, employment of
undocumented migrants, or specific religious and
political beliefs. And imagine if Census Bureau
experts unanimously opined that adding any such
question would materially reduce response rates—
thus lowering accuracy while making more
Americans into criminals. On the government’s view,
the only recourse is in Congress, no matter how
arbitrary or irrational the decision (and no matter if
Congress was informed in a timely manner). As these
examples suggest, the fact that the government’s
position would create a sphere of unfettered
discretion in a criminal context is another reason to
reject it.
III.
THE DISTRICT COURT DID NOT ABUSE
ITS BROAD DISCRETION IN ALLOWING
EXTRA-RECORD DISCOVERY
Relying entirely on the administrative record, the
district court held that the Secretary violated the
APA. The district court added that this conclusion is
only confirmed by extra-record evidence. The
government has consistently maintained that the
district court erred in such allowing such discovery.
The Court need not reach that issue. But if it does, it
should hold that the district court acted within its
broad discretion.
APA review encompasses the “whole record,” 5
U.S.C. § 706—everything “before the [agency] at the
time [it] made [its] decision,” Overton Park, 401 U.S.
at 420. Formal rulemakings usually produce an
34
undisputed record. But informal action requires an
agency to decide which materials to designate as part
of the record. Courts presume regularity in agency
procedures for designating records. See Bar MK
Ranches v. Yuetter, 994 F.2d 735, 740 (10th Cir.
1993). When faced with “clear evidence” of missing
items, courts can order completion of a record. See
Dopico v. Goldschmidt, 687 F.2d 644, 654 (2d Cir.
1982).
In rare cases, however, a court may have strong
reason to suspect that the record does not reflect the
real reasons for the agency’s decision. In such cases,
limited discovery into the decisionmaking process
may be required to assess whether the agency’s
proffered reasons are actually the “grounds upon
which the [agency] itself based its action.” S.E.C. v.
Chenery Corp., 318 U.S. 80, 88 (1943); see Note, The
Presumption of Regularity in Judicial Review of the
Executive Branch, 131 Harv. L. Rev. 2431, 2433–34
(2018). Such discovery is confined to identifying
considerations that the agency relied upon while
making its decision.
Overton Park allows extra-record discovery only
upon “a strong showing of bad faith or improper
behavior.” 401 U.S. at 420. Stated differently, extrarecord discovery is permissible only when there is
powerful reason—supported by evidence—to believe
that the agency has presented a fictionalized account
of its decisionmaking process. When that occurs,
confining judicial review to the designated record
would make a mockery of the APA. See, e.g., Saratoga
Dev. Corp. v. United States, 21 F.3d 445, 457–58
(D.C. Cir. 1994); Portland Audubon Soc. v.
35
Endangered Species Comm., 984 F.2d 1534, 1548 (9th
Cir. 1993).
The Overton Park standard is highly factintensive. See Abbott Labs. v. Harris, 481 F. Supp.
74, 78 (N.D. Ill. 1979) (describing a “judgment in
which the judicial reluctance to intrude into the
decisional process of the agency having special
competence is overborne by the conclusion that the
process may well have gone awry”). Generally,
though, there are two relevant kinds of evidence:
direct evidence of prejudgment, pretext, or illicit
motives, and circumstantial evidence that the
procedures used to arrive at a decision (or designate a
record) varied markedly from regular procedure in
ways that give the reviewing court reason to doubt
the record placed before it.
Here, the district court authorized extra-record
discovery based on extraordinarily powerful direct
and circumstantial evidence, which Respondents
have ably recounted in their briefs. See also Pet. App.
524a–27a. This decision was well within the district
court’s broad discretion.
The government’s contrary view—which no court,
scholar, or agency has ever articulated—lacks merit.
Most notably, it would allow plaintiffs discovery
under Overton Park only if they had already come
forward with enough evidence to prevail on the
merits of their APA claim. See, e.g., New York v.
Salazar, 701 F. Supp. 2d 224, 243 (N.D.N.Y. 2010).
That rule would render such discovery unnecessary
and irrelevant. It also misses the whole point of this
doctrine. Overton Park requires a strong initial
36
showing of substantive or procedural impropriety,
which reflects the need to balance deference to the
agency against the requirement that courts must
review real—not fictionalized—agency records. 9
The government further errs in suggesting that
major departures from agency procedures must be
disregarded. In many areas of law, including this one,
unexplained and notable procedural irregularity is
recognized as powerful evidence of improper or illicit
motive. See, e.g., Vill. of Arlington Heights v. Metro.
Hous. Dev. Corp., 429 U.S. 252, 267 (1977); Doe 2 v.
Shanahan, 917 F.3d 694, 699 (D.C. Cir. 2019); Jesus
Christ Is the Answer Ministries, Inc. v. Baltimore
Cty., Maryland, 915 F.3d 256, 263 (4th Cir. 2019).
At bottom, the government’s position on the bad
faith standard, and its positions throughout this
litigation, are nothing short of an effort to build a
wall around the administrative state that is
impervious to judicial checks and balances. We
appreciate the importance of judicial deference to
agencies, especially to senior executive branch
9 It
is telling that the government relies principally on cases
that address the merits of APA claims based on improper
motive, rather than the standard for discovery. See Miss.
Comm’n on Envtl. Quality v. E.P.A, 790 F.3d 138, 183 (D.C. Cir.
2015); Jagers v. Fed. Crop Ins. Corp., 758 F.3d 1179, 1184-85
(10th Cir. 2014). Further, the single discovery case that the
government cites—Air Transport Association of America Inc. v.
National Mediation Board, 663 F.3d 476 (D.C. Cir. 2011)—is
actually supportive of Respondents, not the government. See id.
at 487-88 (holding that “if a party makes a significant
showing—variously described as a strong, substantial, or prima
facie showing—that it will find material in the agency’s
possession indicative of bad faith or an incomplete record, it
should be granted limited discovery”).
37
officials, and we, too, would warn against any effort
to permit free-wheeling judicial intrusion into agency
decisions. But here, the evidence of arbitrary,
capricious, improper, and pretextual decisionmaking
is comprehensive and unassailable. This is thus the
rare case in which it was not only permissible, but
appropriate, for the district court to authorize limited
extra-record discovery.
CONCLUSION
For the foregoing reasons, Amici respectfully
submit that this Court should affirm the judgment of
the district court.
Dated: April 1, 2019
Respectfully submitted,
ROBERTA A. KAPLAN
JULIE E. FINK
JOSHUA MATZ
Counsel of Record
MATTHEW J. CRAIG
Kaplan Hecker & Fink LLP
350 Fifth Avenue
Suite 7110
New York, NY 10118
(212) 763-0883
jmatz@kaplanhecker.com
Counsel for Amici Curiae
APPENDIX
1a
Appendix
Amici join this brief as individuals; institutional
affiliation is noted for informational purposes only
and does not indicate endorsement by institutional
employers of positions advocated.
Nicholas Bagley, Professor of Law, University of
Michigan Law School
Michael Dorf, Roberts S. Stevens Professor of Law,
Cornell Law School
Aziz Huq, Frank and Bernice J. Greenberg Professor
of Law, Mark Claster Mamolen Teaching Scholar,
University of Chicago Law School
Leah Litman, Assistant Professor of Law, U.C.
Irvine Law School
Gillian Metzger, Stanley H. Fuld Professor of Law,
Columbia Law School
Jon D. Michaels, Professor of Law, UCLA School of
Law
Laurence H. Tribe, Carl M. Loeb University
Professor and Professor of Constitutional Law,
Harvard Law School
Stephen I. Vladeck, A. Dalton Cross Professor in
Law, University of Texas School of Law
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.