Census Case Tests Courts’ Ability to Check Agency Abuses

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By Ian Fein, Natural Resources Defense Council

The Supreme Court this week will hear arguments in an important case with lasting implications for both the allocation of political power in Congress and, potentially, the judiciary’s ability to check government abuses. NRDC filed a brief in the case earlier this month as amicus curiae (Latin for “friend of the court”) to lend our litigation experience to the Court’s consideration of the latter issue.

The case, Department of Commerce v. State of New York, challenges the Trump Administration’s controversial decision to add a citizenship question to the 2020 census. The census is important. It occurs only once every ten years, and the resulting population count determines both where hundreds of billions of federal dollars are spent, and how seats in the House of Representatives (and by extension, the Electoral College) are reapportioned.

Most experts, including the Trump Administration’s own Census Bureau, agree that adding a citizenship question will drive down participation in Latino communities. Noncitizens who reside in this country are supposed to be included in the census count. But a citizenship question would lead to an inaccurate undercount of millions of people, which would shift political power away from urban areas (where many immigrants live), and toward rural areas instead.

Email correspondence disclosed as part of the census litigation suggests this may be precisely why the Trump Administration—and Secretary of Commerce Wilbur Ross, in particular—wanted to add a citizenship question. However, because that reason would likely be unlawful, Secretary Ross instead sought to justify the decision on other, voting-rights grounds that do not hold water.

In January, a district court judge in New York issued a 277-page opinion striking down the citizenship question. The judge found that Secretary Ross’s decision was rife with a “veritable smorgasbord of classic, clear-cut [legal] violations.” The Trump Administration appealed to the Supreme Court.

Our amicus brief focuses on fights that arose during the census case about what materials the district court could consider when reviewing the legality of Secretary Ross’s decision. It’s an area in which NRDC has particular expertise. Since its founding in 1970, NRDC has litigated hundreds of cases involving challenges to administrative agency decisions.

In such cases, judges typically limit their review to the “administrative record”—that is, the material that was before the agency at the time it made its challenged decision. And in most cases, the agency supplies the court with the complete administrative record at or near the outset of the case.

But that’s not always true. Sometimes an agency omits relevant materials from the record—either by accident or, occasionally, by design. The latter has become all too common in the Trump Administration, which has sought (often unsuccessfully) to preclude effective judicial review by providing sanitized administrative records that exclude large amounts of materials.

For example, in the census case, after plaintiffs raised questions about the adequacy of the initial record submitted by Secretary Ross, the district court ordered the government to “complete” the administrative record. The government now concedes that the proper administrative record in the case is 13,000 pages—an order of magnitude larger than the 1,300 pages it initially submitted.

The complete administrative record paints a very different picture than the story Secretary Ross initially gave as to how he decided to add a citizenship question. And among the materials omitted from the initial submission was an email exchange between Secretary Ross and his chief of staff, warning each other to be careful about what might end up in the administrative record before the Supreme Court.

In addition to ordering the agency to complete the record, the district judge in the census case also allowed the plaintiffs to “supplement” the administrative record by engaging in limited “discovery”—essentially, an opportunity to question agency officials about their decisionmaking process. Discovery of this sort is (and should be) rare. Otherwise, disgruntled litigants could easily distract government officials from doing their jobs.

However, the Supreme Court itself has endorsed this type of discovery where plaintiffs make a “strong showing” of agency bad faith or improper behavior. And the district judge in this case was correct in finding that standard satisfied here.

As we argue in our brief, where it appears that an agency has tried to conceal aspects of its decisionmaking, it is crucial that plaintiffs—and courts—have the ability to uncover what the agency is concealing. Otherwise, the worst government abuses could remain hidden from the public and impervious to judicial review.

And that is unacceptable—especially in a case like this, where the stakes for democracy could hardly be any higher.

Originally posted here.

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