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A Judicial Takeover of the Executive Branch

Along with his “save” of the Affordable Care Act (Obamacare) in the 5-4 decision in NFIB v. Sebelius in 2012, Supreme Court Chief Justice John Roberts may now have established a similar judicial landmark with his decisive vote in Dept. of Commerce v. New York, the census case just handed down at the end of the Supreme Court’s term. For, in the words of Justice Thomas in dissent, the 5-4 decision with its “unauthorized inquiry into evidence not properly before it” leading to “an unsupported conclusion,” has “opened a Pandora’s box of pretext-based challenges to administrative law.”

In the first three paragraphs of his majority opinion for the Court, Roberts gave all the legal and constitutional authority necessary for upholding the Trump Administration’s decision to include a citizenship question in the 2020 census. He stated that Article I of the Constitution directs the Congress to provide “by Law” to conduct a census “in such Manner” as it shall direct. Pursuant to such constitutional authority Congress had enacted the Census Act which gives the Secretary of Commerce the authority to conduct the census “in such form and content as he may determine.” Later in his opinion, he also referred to the Secretary’s statutory authority to “determine the inquiries” on the census questionnaire. Roberts pointed out that a question about “citizenship or place of birth” had been included in 18 of the 23 censuses that have occurred in the history of our country since the first census in 1790.

So, in the face of this sweeping statutory and constitutional authority, how could the Court have eliminated the citizenship question from the upcoming census? The answer is that the seventeen plaintiff blue-states, New York federal district court judge Jesse M. Furman, an Obama appointee, and now the Supreme Court with Roberts as the decisive vote have turned the case into one involving the Administrative Procedure Act (APA), the statutory law governing the legal standards for agency actions in the executive branch. The by-far most important concern of that statute is within-agency adjudication and formal agency rulemaking, i.e. the issuing of regulations pursuant to the statutory authority governing each agency. But this case did not involve such rulemaking; it concerned what is known in administrative law as “informal agency action,” that is, the everyday conduct of everyday executive-branch business. Now, the district court and the Supreme Court have turned such informal action into the exception that may have swallowed all of administrative law. Indeed, it may have created a whole new area of public law and precedent. And it goes without saying that the Administrative Procedure Act—a law governing procedures—was never intended to be the basis for a Supreme Court decision about a major constitutional issue regarding a national controversy.

It took Judge Furman 277 pages of administrative prospecting and sifting to accomplish his mission of overcoming the Constitution and the census statute with administrative procedures. Reviewing “experts” and “alternatives” and stating that a citizenship question would not achieve accurate data, would deter and scare off individual respondents, and would be being excessively costly, he said that there were “other less harmful ways” than a direct question about citizenship to get the information sought. Thus did the district evaluate the policy options and decide that the Trump administration’s was not the best one. The vast majority of Americans may not realize that federal judges are such wide-ranging policy specialists.

In his opinion for the Court, Chief Justice Roberts did not endorse these policy and extra-judicial musings but, nevertheless, did endorse the district court’s next step, that is, its conclusion that the Commerce Department’s last-ditch argument that the Department of Justice wanted a citizenship question in the census in order to collect data for enforcing the Voting Rights Act was even beyond “arbitrary and capricious” under administrative law. Furman said it was a “pretext,” while Roberts called it “contrived” and “a distraction.” What the actual motivation the “pretext” was hiding was never explicitly stated by the district court or by Roberts. However, with coy indirectness, Judge Furman really said it anyway when he mentioned out that the plaintiffs in the case had advanced the argument that the Trump administration was motivated by “discriminatory intent toward Latinos, Asian-Americans, Arab-Americans, and immigrant communities of color generally in adding the citizenship question to the Decennial Census.”

The Department of Justice’s litigating tactics under the Administrative Procedure Act have been criticized, with some conservative critics going as far as agreeing with the Supreme Court’s decision. For Law & Liberty, Robert Gasaway, lecturer in law at the University of Chicago Law School, has exhaustively documented the litigating mistakes of the Department and essentially concluded that Chief Justice Roberts had no alternative to ruling as he did. However, Justices Thomas, Alito, Gorsuch, and Kavanaugh obviously thought that there was an alternative. The Trump administration has now decided not to pursue the issue any further. Apparently, the Department itself came to the same conclusion, for it attempted to change its attorneys of record when the case was remanded to the district court after the Supreme Court’s decision, which attempt Judge Furman immediately denied.

In separate dissents, both Justice Thomas and Alito maintained that the Administrative Procedure Act should have been ignored and the case decided on the basis of the statutory law and the larger principle of judicial restraint. Justice Alito stated flatly that administrative law should not have applied to the case and that the question of whether to add a question about citizenship was “committed to agency discretion by law” and should not have been “challenged under” and was “exempt from APA review.” Justice Thomas went on to demolish the administrative law analysis itself, pointing out that the decision was “a departure from traditional principles of administrative law” and represented “an unprecedented departure from our deferential review of discretionary agency decisions.”

In that part of his opinion agreeing with Roberts and thus forming the majority, Justice Breyer, for himself and Justices Ginsburg, Sotomayor, and Kagan, approved of all of the policy conclusions of the district court. He said that the citizenship question would have entailed a “severe risk of harmful consequences” and that the Secretary of Commerce had not “adequately consider[ed]” whether the question was “necessary” and “an appropriate means.” “The Secretary did not make reasonable decisions,” Breyer said, and “did not give adequate consideration to issues that should have been 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.” (emphasis added). Breyer accepted the district court’s conclusion that the citizenship question was bad policy because it contradicted the “evidence in the administrative record,” which included the input of the “American Sociological Association.” Thus, according to Justice Breyer, the district court was correct in ruling that Trump administration’s decision to include a citizenship question in the 2020 census was “arbitrary and capricious” and its stated purpose and motivation was “pretextual.”

Two upshots of Dept. of Commerce: The first is that administrative law, both in its daily practice and judicial review, may now be permanently changed. The status of alleging the formerly rare “arbitrary and capricious” as a legal basis for overturning administrative and regulatory decisions, together with its new and even more sweeping, intent-driven version, “pretext,” has been greatly expanded. In fact, from the beginning of the Trump administration, the Democratic Party and Democratic states have been regularly suing under the “arbitrary and capricious” standard, for instance, in their ultimately unsuccessful travel ban case, Trump v. Hawaii. Now in Dept. of Commerce, the Supreme Court has extended the possibilities for litigation, and if Trump were to win a second term, it could mean the judicial managing of his executive branch. Ironically, if a Democrat should win the presidency, the effect could be the same. Now that the precedent is set, red states and Republicans could go after the “pretexts” of a Democratic administration.

Secondly, the census, with its every-ten-years rearranging of the Electoral College and the map of every Congressional district, as well as its reallocating of federal funds to the states, is always a significant constitutional event. Several contemporary political factors point to an even greater effect for the upcoming 2020 census, which is scheduled to be conducted in April 2020 when the Democratic presidential candidate may still not be decided; and with the re-apportionment results reported to the Congress on December 31, 2020, that is, when a new Congress and possibly a new president are about to take office. Now that they are armed with Dept. of Commerce, it is hard to believe that the Democrats will allow the Trump administration to have a free hand over census preparations for the next seven months, and likewise, for reporting the results in 15 months. For, it will be agreed, what Trump will be hiding in every step along the way will be his racial bias—exactly as judge Furman insinuated in the district court.

Re-arranging the Electoral College is a mainstream idea among the Democratic presidential candidates and in the Democratic Party. Among the versions that have been proposed: a constitutional amendment, increasing the number of representatives in the House, an interstate compact requiring state electors to vote for the national candidate receiving the most popular votes, and making the District of Columbia and Puerto Rico states. The recent judicial activism against gerrymandering had the goal of having the federal judiciary take over all redistricting, federal and state, in 2021 with the results of the 2020 census. In Rucho v. Common Cause, a decision handed down by the Supreme Court in June, the mainly Democratic plaintiffs came within one vote (Roberts’) of achieving that goal.

Similar federal litigation attempting to enact social and constitutional changes without the need for executive or legislative action are pending on the issues of climate change and firearms. In Dept. of Commerce, the Trump Administration was successfully accused of bad motives. We shall see whether such an accusation may appear in other cases.

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