March 7, 2019 / 8:51 PM / in 17 days

In new Supreme Court brief, DOJ offers alternative read of census case facts

(Reuters) - Litigation often boils down to which side can arrange generally agreed-upon facts more compellingly. Victory belongs to whoever spins a better story from the same raw material.

If your first exposure to litigation over the Trump administration’s decision to add a question about respondents’ citizenship to the 2020 census is the brief that the Justice Department filed last night at the U.S. Supreme Court, you probably think the government tells a pretty good story.

In DOJ’s account, U.S. Commerce Department Secretary Wilbur Ross, whose department, by statute, has virtually unfettered discretion over the decennial census of the U.S. population, was mulling the reinstitution of a citizenship question when he received a request from the Justice Department to provide citizenship data to support DOJ’s enforcement of the Voting Rights Act. According to the new Supreme Court brief, Ross then initiated a review process led by the Census Bureau, which carefully considered three options: doing nothing, adding a citizenship question to the upcoming census or relying on administrative records to estimate citizenship data.

DOJ’s brief portrays Ross as thoughtfully weighing the three alternatives and then proposing a fourth, adding the citizenship question to the 2020 census and also estimating citizenship via those administrative records. The secretary, according to the Justice Department, was well aware of Census Bureau concerns that a citizenship question would discourage noncitizens from responding to the questionnaire, but concluded there was not definitive, empirical evidence to back those fears. Ultimately, DOJ’s brief said, Ross determined as a matter of policy and prerogative that the value of accurate citizenship data outweighed any potential risk of underreporting – particularly because anyone in the U.S. who fails to respond to the census is violating a legal duty.

In DOJ’s telling, Ross continued to follow requisite procedures when he issued a policy letter addressing his rationale for adding the citizenship question and subsequently appeared in Congress to explain it. According to the Justice Department’s brief, the Commerce secretary easily met the extremely deferential standard accorded to his department over census decisions, which requires merely that they be rational.

“Citizenship and other demographic questions have long been a part of the decennial census despite their potential effect on response rates,” the DOJ brief said. “And the secretary set forth his reasons for reinstating the citizenship question in a detailed decisional memorandum, in which he evaluated four potential options for satisfying DOJ’s request for citizenship data. He expressly acknowledged the very concerns respondents raise here, but made the policy judgment that ‘the value of more complete and accurate’ citizenship data ‘outweighs such concerns.’”

Now, if you’ve been following the 2020 census litigation, you will know that the preceding account of Secretary Ross’ decision-making process omits many of the facts that persuaded U.S. District Judge Jesse Furman of Manhattan to conclude the Trump administration violated the Administrative Procedure Act in demanding the inclusion of a citizenship question. In January, after nearly a year of viciously fought litigation and an eight-day bench trial, the judge issued a 277-page opinion that concluded the Commerce secretary committed “a veritable smorgasbord of classic, clear-cut APA violations.” According to Judge Furman, Ross rigged the administrative process: He cherry-picked or misconstrued evidence that didn’t suit his purposes, ignored complexities obstructing his desired conclusion and acted irrationally in light of his own ostensible criteria for a decision.

And that’s not all. Judge Furman found that Ross ignored a statute that requires him to notify Congress of the subjects planned for any census at least three years in advance and provided a sham rationale for adding a citizenship question. Ross violated the APA, according to Judge Furman, because “he announced his decision in a manner that concealed its true basis rather than explaining it.”

At the time Judge Furman issued his ruling, DOJ said it disagreed with his conclusions. “The government is legally entitled to include a citizenship question on the census, and people in the United States have a legal obligation to answer,” a Justice spokeswoman said.

Judge Furman is not alone. On Wednesday, U.S. District Judge Richard Seeborg of San Francisco reached more or less the same conclusions in a separate case challenging to the census citizenship question. Judge Seeborg’s 126-page opinion said that Secretary Ross’s purported consultation with the Census Bureau was “a cynical search to find some reason, any reason, or an agency request to justify that preordained result” – the very definition, according to Judge Seeborg, of an arbitrary and capricious act. The case before the Supreme Court involves just Judge Furman’s decision, in a case brought by dozens of states, municipalities and civil rights groups.

So what facts convinced Judges Furman and Seeborg that the Commerce secretary violated the APA? I’m not going to recount all of the details in their combined 400 pages of judicial fact-finding and analysis. But in the judges’ telling, Ross had already decided to add a citizenship question to the 2020 census when he and Commerce staff went shopping for an executive agency to provide a rationale. After several rebuffs – and a personal appeal from Ross to former Attorney General Jeff Sessions – Commerce persuaded DOJ to make a formal request, in a letter allegedly ghostwritten by a DOJ political appointee, to add the question to provide citizenship data. “The most reasonable inference to be drawn from these facts is that … Secretary Ross spoke with Attorney General Sessions and asked that he instruct his subordinates at DOJ to request a question on citizenship be added to the census,” Judge Seeborg wrote.

Judge Furman’s factual summary is dramatically at odds with the story DOJ told in its Supreme Court brief: “The evidence,” he wrote, “reveals that Secretary Ross was aggressively pressing to add a citizenship question to the census before the idea of justifying it on the basis of VRA enforcement was first floated; that … Secretary Ross’s own aides came up with the legal rationale DOJ could rely upon for addition of the question; that, believing they needed another agency to justify adding the question, they actively lobbied other agencies to make the request and, when that initially proved unsuccessful, explored whether they could do it themselves; that, undeterred by the lack of any interest from DOJ staff, Secretary Ross intervened directly with Attorney General Sessions in order to secure the request they believed they needed; and that Secretary Ross’s aides then fed DOJ with the rationale for the request rather than vice-versa.”

The Justice Department contends Judge Furman far exceeded his power, and the case record, in casting doubt on Secretary Ross’ motivations. “The court cited no evidence (much less ‘solid’ evidence) that the Secretary disbelieved DOJ’s letter and, instead, secretly thought that reinstating the citizenship question to the census would not be useful for VRA enforcement,” DOJ said in its new brief. “The court’s finding thus has no basis in the record.”

The whole point of storytelling is to make an impression on your audience. DOJ’s brief to the Supreme Court, with its emphasis on the Commerce Department’s congressionally delegated authority over the decennial census, is carefully pitched to its audience of Supreme Court justices. The brief does not dispute Judge Furman’s recitation of the facts preceding DOJ’s letter asking the Commerce Department to add a citizenship question to the 2020 census. It avoids them. (DOJ, in Wednesday’s brief, did not overtly argue that those facts are outside of the administrative record of Ross’ decision-making. It argued separately that Judge Furman should not have ordered the government to produce extra-record discovery and should not have taken such discovery into account but did not contest specific evidence on those grounds.) The Justice Department knows the Supreme Court is institutionally squeamish about trial courts substituting their judgment for that of executive branch officials, so DOJ’s story is about Secretary Ross acting within his discretion as a decision-maker.

Like Judges Furman and Seeborg, you can be sure New York, the ACLU and the other plaintiffs in the census case will emphasize a different narrative when they file their brief at the Supreme Court.

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