On Monday night, the Trump administration won a partial victory at the Supreme Court in its attempt to conceal the real reasons for its addition of a citizenship question on the 2020 census. The court blocked the impending deposition of Commerce Secretary Wilbur Ross in a lawsuit brought by the New York attorney general (along with a coalition of state attorneys general) and the American Civil Liberties Union. But the court also allowed the deposition of acting Assistant Attorney General John M. Gore, who worked with Ross to justify the question’s insertion. Its split decision suggests that the court’s conservative majority is not yet prepared to shut down this litigation—though Justices Neil Gorsuch and Clarence Thomas are already eager to help cover up the Trump administration’s lies.
Ross announced in March the inclusion of a citizenship question in the upcoming census, ostensibly at the behest of the Department of Justice. The DOJ asserted that it needed citizenship information to better enforce the Voting Rights Act—a far-fetched claim that makes no sense on its face and is especially laughable coming from enemies of the law. State attorneys general and civil liberties advocates quickly filed suit. They alleged that the citizenship question was added illegally and would create an “undercount” by frightening immigrant communities out of responding to the census. As a result, the 2020 census would underestimate the populations of many blue states, denying them fair representation in the House of Representatives as well as billions in federal funds. (Under the Constitution, the census must count all “persons,” not just citizens.)
U.S. District Judge Jesse Furman allowed this lawsuit to move forward in July, denying the government’s motion to dismiss. He held that the plaintiffs had presented plausible evidence of racial animus, as well as arbitrary and capricious action on the part of the Commerce Department. Later, Furman ruled that the plaintiffs could depose both Ross and Gore, a decision the 2nd U.S. Circuit Court of Appeals upheld.
Now the Supreme Court has halted Ross’ deposition while permitting Gore’s. It did not explain the rationale behind its divided decision, but presumably the justices felt Ross, as a cabinet secretary, will have stronger claims of privilege than Gore. In a partial dissent, Gorsuch, joined by Thomas, wrote that he would have blocked both officials’ depositions, as well as any discovery beyond the record the Commerce Department already compiled. Gorsuch declared that the plaintiffs had failed to show the requisite evidence of bad faith to warrant expansive discovery:
As evidence of bad faith here, the district court cited evidence that Secretary Ross was predisposed to reinstate the citizenship question when he took office; that the Justice Department hadn’t expressed a desire for more detailed citizenship data until the Secretary solicited its views; that he overruled the objections of his agency’s career staff; and that he declined to order more testing of the question given its long history. But there’s nothing unusual about a new cabinet secretary coming to office inclined to favor a different policy direction, soliciting support from other agencies to bolster his views, disagreeing with staff, or cutting through red tape.
This argument is noteworthy for two reasons: It is both factually incorrect and extremely hypocritical.
Gorsuch conveniently leaves out Furman’s most critical finding: that Ross lied about his reasons for adding the citizenship question. Initially, Ross insisted—under oath before Congress—that he began considering the question in response to the DOJ’s request. A document obtained in discovery, however, reveals that Ross himself pushed the DOJ to submit this request, contradicting his earlier sworn testimony. Furman, quite sensibly, found that Ross’ dishonesty could indicate that his “proffered rationale for the decision … may have been pretextual.” He rested his decision to permit the depositions on that conclusion. Yet Gorsuch elided Ross’ falsehood, a sleight of hand that erases the heart of Furman’s ruling.
Now to the hypocrisy. During his decade on the 10th U.S. Circuit Court of Appeals, Gorsuch built his reputation as a skeptic of the “administrative state,” those executive branch agencies tasked with implementing federal law. He is an outspoken critic of the rule that courts should defer to these agencies’ reasonable interpretations of ambiguous statutes. If Gorsuch can turn these views into law, he will hobble countless business and environmental regulations, paralyzing federal efforts to protect consumers and limit pollution.
This case should be an object lesson in the perils of excessive deference to the administrative state. Here, bureaucrats at the Justice and Commerce Departments are attempting to materially alter the census and conceal their manipulations behind privilege claims. Yet at this late date, federal law only permits the commerce secretary to impose a new census question if he “finds new circumstances exist which necessitate” modifications. Moreover, the Administrative Procedures Act prohibits “arbitrary and capricious” administrative actions, a standard satisfied when an agency “offered an explanation for its decision that runs counter to the evidence before the agency.”
Here, the plaintiffs challenge Ross’ assertion that he found “new circumstances” that require a citizenship question. They seek discovery to help the courts determine whether his actions are “arbitrary and capricious” because they run “counter to the evidence” the agency collected. (The Commerce Department’s own evidence suggests that a citizenship question could provoke an undercount of immigrants and Hispanics.) Shouldn’t Gorsuch embrace this robust interrogation of unelected bureaucrats’ alleged departure from their legal obligations?
Apparently not. Instead of sticking to his principles, Gorsuch is running interference for the Trump administration, urging the courts to let the administrative state misapply federal law and then suppress all evidence under the guise of privilege. That’s a disappointing departure from the justice’s legal philosophy—one that seems tailored to let Wilbur Ross sabotage the census in an effort to entrench Republican power for a decade.
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