State v. U.S. Dep't of Commerce
| Decision Date | 26 July 2018 |
| Docket Number | 18-CV-5025 (JMF),18-CV-2921 (JMF) |
| Citation | 315 F.Supp.3d 766 |
| Parties | STATE of New York, et al., Plaintiff, v. UNITED STATES DEPARTMENT OF COMMERCE, et al., Defendants. New York Immigration Coalition, et al., Plaintiff, v. United States Department of Commerce, et al., Defendants. |
| Court | U.S. District Court — Southern District of New York |
Dale E. Ho, Caroline Kelly, Chase Raines, Daniel F. Jacobson, Jay Z. Leff, John Arak Freedman, Arnold & Porter Kaye Scholer LLP, Ceridwen Bonnell Cherry, Davin Mckay Rosborough, Sarah E. Brannon, American Civil Liberties Union Foundation, Washington, DC, Christopher T. Dunn, Perry Grossman, New York Civil Liberties Union, David Kautsky Hausman, American Civil Liberties Union, New York, NY, Dylan Scot Yong, Arnold & Porter, District of Columbia, DC, for Plaintiff.
Kate Bailey, United States Department of Justice (Civil - Fed Programs), Stephen Ehrlich, United States Department of Justice (20 Mass Ave), Washington, DC, for Defendants.
The Fourteenth Amendment to the Constitution provides that "Representatives shall be apportioned among the several States according to their respective Numbers, counting the whole number of persons in each State." U.S. CONST. amend. XIV, § 2. Article I of the Constitution provides, in turn, that the number of persons in each state is to be calculated by means of an "actual Enumeration" — known as the census — every ten years "in such Manner as [Congress] shall by Law direct." Id. art. I, § 2, cl. 3. Since 1790, the government has conducted that "actual Enumeration" through questions — initially asked in person and, later, by means of written questionnaire — about both the number and demographic backgrounds of those living in each American household. Beginning in 1820, one such question concerned (in one form or another) citizenship status. The government ceased asking that question of everyone nationwide in 1960. Earlier this year, however, Secretary of Commerce Wilbur L. Ross, Jr., exercising authority delegated by Congress over the census, announced that he was reinstating the citizenship question on the 2020 census questionnaire. Secretary Ross explained that reinstatement of the citizenship question is necessary for the Department of Justice to enforce, and courts to adjudicate, violations of Section 2 of the Voting Rights Act of 1965, codified at 52 U.S.C. § 10301.
Plaintiffs in these two related cases (which have been informally consolidated for purposes of scheduling and discovery) contend that Secretary Ross's decision to reinstate the citizenship question on the 2020 census questionnaire violates both the Constitution and the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 701 et seq. In 18-CV-2921, Plaintiffs are eighteen states and the District of Columbia, as well as various cities, counties, and mayors; they challenge the Secretary's decision under both Article I's Enumeration Clause and the APA. (Docket No. 214 ("SAC"), ¶¶ 178-97). In 18-CV-5025, Plaintiffs are five nongovernmental organizations, four suing on behalf of themselves and their members and one suing only on its own behalf; they challenge the Secretary's decision on the same grounds and also as a violation of equal protection, as embodied in the Due Process Clause of the Fifth Amendment. .1 On May 25, 2018, Defendants — the United States Department of Commerce; Secretary Ross (the "Secretary"); the Bureau of the Census (the "Census Bureau"); and Acting Director of the Census Bureau, Ron Jarmin — moved, pursuant to Rule 12(b)(1) and (b)(6) of the Federal Rules of Civil Procedure, to dismiss the First Amended Complaint in 18-CV-2921. (Docket No. 154).2 On June 29, 2018, Defendants moved to dismiss the Complaint in 18-CV-5025. (18-CV-5025, Docket No. 38). The Court held oral argument on the first motion on July 3, 2018. (See July 3, 2018 Transcript, Docket No. 207 ("Oral Arg. Tr.") )
Broadly speaking, in this Opinion, the Court reaches three conclusions with respect to Defendants' motions. First , the Court categorically rejects Defendants' efforts to insulate Secretary Ross's decision to reinstate the citizenship question on the 2020 census from judicial review. Contending that Plaintiffs cannot prove they have been or will be injured by the decision, and citing the degree of discretion afforded to Congress by the Enumeration Clause and to the Secretary by statute, Defendants insist that this Court lacks jurisdiction even to consider Plaintiffs' claims. As the Court will explain, however, that contention flies in the face of decades of precedent from the Supreme Court, the Second Circuit, and other courts. That precedent makes clear that, while deference is certainly owed to the Secretary's decisions, courts have a critical role to play in entertaining challenges like those raised by Plaintiffs here.
Second , the Court concludes that the citizenship question is a permissible — but by no means mandated — exercise of the broad power granted to Congress (and, in turn, to the Secretary) in the Enumeration Clause of the Constitution. That conclusion is compelled not only by the text of the Clause, which vests Congress with virtually unlimited discretion in conducting the census, but also by historical practice. The historical practice reveals that, since the very first census in 1790, the federal government has consistently used the decennial exercise not only to obtain a strict headcount in fulfillment of the constitutional mandate to conduct an "actual Enumeration," but also to gather demographic data about the population on matters such as race, sex, occupation, and, even citizenship. Moreover, it reveals that all three branches of the government — including the Supreme Court and lower courts — have blessed this dual use of the census, if not a citizenship question itself. In the face of that history and the broad constitutional grant of power to Congress, the Court cannot conclude that the Secretary lacks power under the Enumeration Clause to ask a question about citizenship on the census.
Third , although the Secretary has authority under the Enumeration Clause to direct the inclusion of a citizenship question on the census, the Court concludes that the particular exercise of that authority by Secretary Ross may have violated NGO Plaintiffs' rights to equal protection of the laws under the Due Process Clause of the Fifth Amendment. That is, assuming the truth of NGO Plaintiffs' allegations and drawing all reasonable inferences in their favor — as the Court must at this stage of the proceedings — they plausibly allege that Secretary Ross's decision to reinstate the citizenship question on the 2020 census was motivated by discriminatory animus and that its application will result in a discriminatory effect. As discussed below, that conclusion is supported by indications that Defendants deviated from their standard procedures in hastily adding the citizenship question; by evidence suggesting that Secretary Ross's stated rationale for adding the question is pretextual; and by contemporary statements of decisionmakers, including statements by the President, whose reelection campaign credited him with "officially" mandating Secretary Ross's decision to add the question right after it was announced.
The net effect of these conclusions is that Defendants' motions to dismiss are granted in part and denied in part. In particular, Plaintiffs' claims under the Enumeration Clause — which turn on Secretary Ross's power rather than his purposes — must be and are dismissed. By contrast, their claims under the APA (which Defendants seek to dismiss solely on jurisdictional and justiciability grounds) and the Due Process Clause — which turn at least in part on Secretary Ross's purposes and not merely on his power — may proceed.
As noted, the Constitution requires an "actual Enumeration" of "the whole number of persons in each State" every ten years, and grants to Congress authority to conduct that enumeration — commonly known as the census — "in such Manner as [Congress] shall by Law direct." U.S. C ONST . art. 1, § 2, cl. 3 & amend. XIV. The modern census is governed by the Census Act, which was enacted in 1976. See 13 U.S.C. §§ 1 et seq. The Act delegates to the Secretary of Commerce the duty to "take a decennial census of population as of the first day of April of such year ... in such form and content as he may determine." 13 U.S.C. § 141(a). It further provides that "[t]he Secretary shall prepare questionnaires, and shall determine the inquiries, and the number, form, and subdivisions thereof, for the statistics, surveys, and censuses provided for in [the Act]." Id. § 5. The Secretary is required to submit "a report containing [his] determination of the questions proposed to be included" in the census "not later than 2 years before the appropriate census date." Id. § 141(f)(2). After the census is taken, the President is tasked with transmitting to Congress "a statement showing the whole number of persons in each State ... as ascertained under the ... decennial census of the population, and the number of Representatives to which each State" is "entitled." 2 U.S.C. § 2a(a).
Significantly, consistent with the constitutional text, the decennial census endeavors to count all residents of the United States, regardless of their legal status. See Fed'n for Am. Immigration Reform v. Klutznick , 486 F.Supp. 564, 576 (D.D.C. 1980) (three-judge court) ( ...
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