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Immigration and the Census
Judge Jesse Furman of the District Court for the Southern District of New York issued a 277-page opinion last week in the watershed case of The State of New York v. United States Department of Commerce. At issue was the lawfulness of Commerce Secretary Wilbur Ross’s order to include a question in the 2020 census that asks all individuals whether or not they are citizens of the United States. That order was vehemently resisted by the Census Bureau and was promptly challenged in court by New York State, which assembled a coalition that included 17 other blue states, numerous cities and towns, and private organizations whose funding allocations depend on an accurate census count. They claimed that including the citizenship question on the census would reduce the size of the total population count as illegal aliens would decline to participate in the census, lest they be put in legal jeopardy. They further insisted that none of the customary follow-up procedures could remedy that structural undercount.
Judge Furman ruled against the Department of Commerce on a standard array of administrative law grounds. He found that the various plaintiffs had standing to challenge the order; that the Department offered pretextual grounds for the decision; and that its decision was not in accordance with law, because it both ignored specific mandates in the Census Act of 1976 and that its lack of factual foundation rendered it arbitrary and capricious. Furman denied, however, all constitutional challenges to the ruling, by finding that the Department did not engage in any form of invidious discrimination against immigrants and hispanics.
When I first read the headlines about the case, I feared that Judge Furman had proceeded on inappropriate constitutional grounds. After all, the citizenship question cannot be regarded as irrelevant for the census since the distinction between citizens and aliens is absolutely critical to the basic structure of the American political system. Aliens, for example, do not get to vote, while citizens do. It would thus be wholly inappropriate to keep the citizenship question off the table as part of the overall census effort. But this was not the basis of Furman’s decision; rather, his opinion rests exclusively on technical administrative law grounds that are in fact solid and well-reasoned.
The first point in the opinion addresses statutory authorization under the 1976 Census Act. Section 141(a) provides that the Secretary of Commerce “shall” conduct the decennial census “in such form and content as he may determine, including the use of sampling procedures and special surveys. In connection with any such census, the Secretary is authorized to obtain such other census information as necessary.” Standing alone, this section contains the usual mixture of discretion and dictates, which would make it difficult for any court to second-guess Ross’s judgment. The discretion conferred on the Secretary does not depend on the application of the general Chevron doctrine that requires the courts to defer to agency determinations in interpreting unclear questions of statutory law. Section 141(a) contains an explicit grant of such powers that negates the need for any leap of faith in administrative law. Discretion is built into the statute, which explains why Chevron was not even cited in Judge Furman’s lengthy opinion.
Unfortunately for the government, the 1976 Census Act also includes Section 6. Section 6(c) states 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 any source referred to in sections (a) or (b) of this section instead of conducting direct inquiries.” Those two subsections in turn allow the Secretary to acquire additional information by asking other federal agencies and departments to supply that information, or purchase or otherwise acquire the information needed from states and local governments or from private parties. Section 6 thus offers a roadmap on how to get to the citizenship issue without asking any direct questions. Accordingly, Judge Furman is on solid ground when he stresses that the two words “shall” and “instead” in section 6(c) express a clear and consistent preference to attack the question of citizenship indirectly when other resources are available for the job, such as the American Community Survey (“ACS”). At this point, it was fatal that Secretary Ross’s proposed order increased the cost of data collection; reduced the quality of the data collected; and resulted in a “differential undercount” of households with noncitizens and hispanic populations. Furman concluded that these effects “will translate into a loss of political power and funds” for the affected groups. Furman’s conclusions do not undercut the importance of citizenship to organizing our government. But it does support Judge Furman’s finding that these irregular procedures were “not in accordance with law” under Section 706 of the 1946 Administrative Procedure Act (APA).
Judge Furman next concluded that the decision taken by Secretary Ross could not stand because it was “pretextual,” in that his stated reason did not match his actual behavior. Ross claimed that he had a request from the Department of Justice (DOJ) to supply this information to aid it in the enforcement of the Voting Rights Act of 1965 (VRA). The difficulty with that argument was three-fold. First, at no point in the 63 years of vigorous enforcement of the VRA did any DOJ under any administration ask that information. Indeed, the citizenship question was last included on the Census in 1950, fifteen years before the VRA was enacted. Second, the decision to ask for citizenship information was made before any request by the DOJ, which further undermined Ross’s purported justification. That second charge led to the third difficulty with Ross’s argument: the Judge found that the action in question was “arbitrary and capricious,” and therefore invalid under Section 706 of the APA.
At this point, the issue is muddier because that elusive three-word phrase “arbitrary and capricious” has spawned a multiplicity of standards. Dating back to 1983, the Supreme Court announced a “hard look” standard in Motor Vehicle Manufacturers v. State Farm that required administrative agencies to take all relevant information into account and avoid incorporating irrelevant information into its analysis of any proposed regulation. That standard is hopelessly high, and so many lower court cases hold, as in the 2015 Fifth Circuit decision in Gulf Restoration Network v. McCarthy, that arbitrary and capricious review is “extremely limited and highly deferential.” In general, I incline toward the second and lower of these standards on these technical issues, where judicial competence is at its low ebb. But it is highly unlikely that the difference between these competing standards will prove decisive, given that the technical staff of the Census Board was squarely against Ross’s initiative, with powerful objections that Furman spelled out in painful detail.
Fortunately, Judge Furman refused to strike down Ross’s question on constitutional grounds. In a sense, this conclusion was unnecessary for the decision, but Furman included it to establish a record on this point in case his administrative law conclusions were rejected. The underlying dispute was whether Ross’s order was constitutionally tainted by a hidden motive to undercut the status of minority and immigrant communities. Under the 1976 Supreme Court decision in Washington v. Davis, the applicable standard looks to intention, not to effect. On the factual question, Furman concluded, correctly, that the plaintiffs took a litigation risk in pressing this claim without waiting for the authorization to take Ross’s deposition. Moving quickly meant that their sketchy case fell short. Furman did, however, gave a narrow reading of the Supreme Court’s 2018 decision in Trump v. Hawaii, which upheld the administration’s vetting procedures for allowing foreign nationals from dangerous countries into the United States. Furman concluded that the high degree of constitutional deference for any “facially neutral policies” only applies to the “national security and foreign affairs context.” To be sure, the executive always plays a more powerful role in foreign affairs, but it does not necessarily follow that the President’s discretion is sharply limited in domestic affairs, especially when his actions receive Congressional authorization. The cases are not in perfect harmony, but it should be possible to duck that issue here. The administration won in Trump v. Hawaii, in large part because an exhaustive interdepartmental review supported the various portions of his exclusion order. Similar processes and findings were wholly lacking here.
The last point of note is the choice of remedy in the case. The usual rule of administrative law “vacates” the decision below and “remands” it to the Secretary to try again. Furman was correct to conclude that the Secretary could not make a case that the defects in question were so marginal that the question should remain on the census until the bugs were worked out, given that the objections to this question were grounded on deep substantive concerns, and not small technical or marginal issues. But Furman did, in response to the plaintiff’s request, take the somewhat unusual step of giving the plaintiffs injunctive relief so that Secretary Ross could not reissue the old order with only a few cosmetic changes to keep his preferred policy in place.
My view is that the Trump administration will fall short in its effort to reverse this decision. Administrative law requirements bind the Trump administration as much as any other.
© 2019 by the Board of Trustees of Leland Stanford Junior University
Published in Immigration, Law
Thanks. Good to get a clear understanding of the justification for the decision.
You thought that was clear? I’m gonna have to go back and read that five more times using a law dictionary.
I thought that the whole point of the census was to get an accurate count of legal citizens for the purpose of allotting a proportional number of Congressional districts to States.
Epstein seems to be saying that there is a 1976 law that requires the Secretary of Commerce to acquire the census information by other means than direct interviews. If that is the case, why do they do house to house interviews at all?
Nailed it Steven.
We shall see what the Supreme Court does. Will Ginsberg be on the court then?
From Wapo:
“In Furman’s ruling, he said Congress prohibited the commerce secretary from adding a question to census forms if the information was available in some other way. Such data is available from existing administrative records, he said.”
Do we now know accurately how many illegal aliens there are from existing administrative records? Uh -huh. Right.
Absolute nonsense. What have no accurate count of illegal aliens which severely hampers appropriate law enforcement. What crap.
The fact that the estimates of the numbers of illegal aliens varies wildly from 10 million to 30 million shows that we don’t have a real accurate way to measure them.
A judge who decides a case based on what he thinks the law should have said violating his oath of office and undermining our American way of government, which is based the rule of law.
Epstein seems to have concluded that the judge did his job, if I understood the article.
The OP didn’t bring up the issue of whether the law was a good one or a bad one, so as interesting as that question is, it’s a subject for a separate post.
Epstein actually made this clear (emphasis mine):
Based on what the OP says, it seems pretty clear that Congress (Congress writes the law, not the judge) intends for those interviews to
If Epstein didn’t already cloud my mind, then you have made me thoroughly confused! If I read you correctly, you are saying the intended purpose of the law is to do direct interviews in cases where it is available from other sources.
I thought the Census was supposed to not do direct interviews in cases where it is available from other sources.
Of course, the Founding Fathers always wanted the U.S. Constitution to be for non-citizens. That was what they were fighting for.
They were completely obsessed with Mexico. I mean the Viceroyalty of New Spain.
Future Viceroy Bernardo de Gálvez is one of only eight people to have been awarded honorary United States citizenship probably for capturing Pensacola and Mobile during the war, but his citizenship was granted 228 years after he died.
My wording was poor.
The law says to use direct interviews in cases where it is available from other sources but other requirements would not be met that way.
Not in all cases where it is available from other sources.
It would have been clearer if I’d written
Thanks for clearing that up.
How did we let this thing get so bad. Clearly, the issue here is that Marxist regimes have taken root in states and strengthened themselves by bringing in illegals who they know they can manipulate for their own good. They also use these illegals to pad their population numbers to gain more House seats than they should otherwise have. Here in PA, the majority of the people are conservatives of the Tea Party type. Yet we are all subject to Philly and Pittsburgh Marxists who count tens of thousands of fraudulent votes in every election against us. You can look at the numbers and see dozens of precincts where the number of votes counted vastly exceeds the number of registered voters and in many of these precincts somehow nary a Republican vote was tallied. It seems so hopeless and frustrating. What the hell point is a census anyway?!?!
This is not correct. The Constitution requires a census of all persons, not citizens, with an exception for “Indians not taxed” that is no longer applicable due to subsequent legislation conferring citizenship of the Indians. This is in Art. I, Sec. 2:
The post-Civil War amendments eliminated the effect of the Three Fifths Clause, as the former slaves all became “free Persons,” leaving no one in the “other Persons” category in the above clause.
Richard:
“Unfortunately for the government, the 1976 Census Act also includes Section 6. Section 6(c) states 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 any source referred to in sections (a) or (b) of this section instead of conducting direct inquiries.” Those two subsections in turn allow the Secretary to acquire additional information by asking other federal agencies and departments to supply that information, or purchase or otherwise acquire the information needed from states and local governments or from private parties. Section 6 thus offers a roadmap on how to get to the citizenship issue without asking any direct questions. Accordingly, Judge Furman is on solid ground when he stresses that the two words “shall” and “instead” in section 6(c) express a clear and consistent preference to attack the question of citizenship indirectly when other resources are available for the job, such as the American Community Survey (“ACS”).”
From the ACS website: “The American Community Survey collects data on an ongoing basis, January through December, to provide every community with the information they need to make important decisions”
Gee Richard, when I was a minor elected official in LA County, numerous bureaucrats admitted that no one and I mean no one had an accurate guess as to how many illegals were in LA County, but most guessed it was in the millions give or take a million or two.
We are told by the ACS from their website that they will provide our community with the information they need to make important decisions. Unfortunately not.
Just to give you one issue. From 1990 to 2006 in a semi secret LA County report (known only to elected officials like me and not published for the public) it was known that the County had only allowed building permits for housing that would house approximately 400,000 people but no data was available as to how many of those permits were for replacement housing such as a smaller house being torn down for a larger one which very common at that time and was likely the vast majority of permits. Thus one could safely assume new housing was created for only about 100-150,000 people if that for all of those 16 years.
The rub was that almost anyone with any knowledge of the illegal immigration issue knew that millions of illegals had settled in LA County during that time and had caused a massive housing crisis creating much homelessness.
So in this case Judge Furman was woefully incorrect in his assumptions of the ability to determine the number of illegals through sources other than the census with seriously destructive consequences. Furman’s decision is full of holes and should be overturned.
I bet if you want the locals closest to the accurate head count of non citizens to fess up, simple have the Census Bureau way over estimate the non citizen count for the suspected jurisdictions, and then deduct their Federal representation and Federal funding accordingly. This would result in a legal battle which would force each representative area to show appropriate and mathematically provable justification why they should have no loss representation.
Put the onus on the states currently gaming the representation system with their desire to pillage the other states for their mushy sanctuary druthers. Otherwise why not just give half of Latin American congressional seats and money from the Federal fisk without the relocation and taxation bothers?
So basically the whole census per administrative law is illelage becuase its unneccary based on that logic. We already have really good demographic information that’s highly accurate. Name a single question on the census that we don’t already have data on from another governmental agency? Whether it’s good or not another question.