The U.S. Supreme Court today issued a decision (PDF) on whether to allow or remove the citizenship question from the 2020 Census. Chief Justice Robert’s 5-4 opinion upheld a lower court’s decision asking the Department of Commerce to explain the decision to add the citizenship question with their real rationale.
For now, the district court’s decision to block the addition of the citizenship question remains in effect.
In May 2018, Advancing Justice|AAJC and MALDEF sued the administration and Commerce Secretary Wilbur Ross on behalf of Latino and Asian American individuals, Native Americans, social service nonprofits, state legislative associations, civil rights groups, voting rights organizations, and community partnerships that would be forced to divert resources to combat a potential severe undercount in their respective communities. Read AAJC’s statement on today’s decision.
EJS Legal Director Mona Tawatao noted a key passage from today’s decision by the majority:
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 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 reason—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 disconnect 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 requirement 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.