Responding to the Supreme Court’s 5-4 ruling last week in Department of Commerce v. New York, No. 18-966 (decided June 27, 2019), the administration on Tuesday, July 2 announced it would drop its planned citizenship question on the 2020 decennial census questionnaire (which it retracted the next day). In an opinion authored by Chief Justice Roberts, the Court held that even if Secretary of Commerce Wilbur Ross’s decision to add a citizenship question to the census was not arbitrary or capricious under § 706(2)(A) of the Administrative Procedure Act (APA), it nonetheless “must be set aside because it rested on a pretextual basis, which the government conceded below would warrant a remand to the agency.”
Whatever our views of the utility of obtaining a count from census responses on the prevalence of undocumented immigrants in the United States, or more generally of the character of the Trump administration, we should hesitate in congratulating the Court on its apparent recognition of a “pretext” basis for invalidating agency action under the APA.
The evidence of pretext in this case emerged from an extensive hearing and discovery of deliberative documents in the district court. We are told that the trial court should not have ordered “when it did” this extra-record discovery, which included depositions of key Commerce officials, and would have included Ross himself had the Supreme Court not intervened. Ross had claimed that he was asking the citizenship question at the behest of and insistence of the Department of Justice (DOJ) that improved citizenship data would enhance that department’s ability to enforce the Voting Rights Act. It turned out, however, based on the extra-record discovery, that the Commerce Department was the animating force behind DOJ’s request for citizenship data. “In these unusual circumstances, the District Court was warranted in remanding to the agency,” the Court noted. “We do not hold that the agency decision here was substantively invalid.” Rather, “reasoned decisionmaking” under the APA “calls for an explanation for agency action. What was provided here was more of a distraction.”
It is on one level troubling if agencies are able to conceal their “real” reasons for agency action by hiding behind the limits of arbitrary/capricious review. This problem is compounded by the Supreme Court’s 1971 insistence in Overton Park that review even of informal adjudication, which does not ordinarily generate a definite record conventionally understood, must be on the basis of the “record” before the administrative agency and limited to the reasons given by the agency for its action. This, despite the failure of the APA and many organic statutes to prescribe procedures for informal adjudication, proceedings that are neither on-the-record nor notice-and-comment rulemaking. Review for pretext seems an ideal solution for this procedural gap in U.S. administrative law but in fact offers a cure worse than the decision.
The first point is that it is not clear that courts have authority to review for “pretext.” This is not one of the stated grounds for review in the APA (although it might, with considerable question begging and some difficulty, be squeezed into “otherwise not in accordance with law” or “without observance of procedure required by law” standards in 5 U.S.C. §706(2)(A), (D)). Dictum in Justice Marshall’s opinion in Overton Park, offered without citation, suggested that a “strong showing of bad faith or improper behavior” may permit inquiry into the “mental processes of administrative decisionmakers.” The Court in Department of Commerce relied on this language in stating its holding, and that endorsement may be sufficient to justify future invocation of the “bad faith or improper behavior” requirement despite its questionable provenance.
It is also not clear that courts cannot adequately discern agency subterfuge in most cases through careful arbitrary/capricious review. Comprised of Chief Justice Roberts and four dissenting justices who voted to sustain Secretary Ross’s decision as not arbitrary or capricious, the Court had to do something more; it could not limit itself to arbitrary/capricious review. (Some have speculated that the Chief Justice was initially writing for a Court to reverse the judgment below but changed his vote at the 11th hour because of the recent disclosure that Commerce had concocted the DOJ recommendation.) Justice Breyer’s partial dissent for four justices argued that problems with the Secretary’s response below to criticism of using a citizenship question on the census, most particularly from Commerce’s own staff experts in the Census Bureau, “provide[d] a sufficient basis for setting the decision aside,” without having to evaluate “[t]he reason the Secretary provided for needing more accurate citizenship information in the first place—to help the DOJ enforce the Voting Rights Act….”
Invalidation of agency action on grounds of pretext raises the risk of the disqualifying the decisionmaker from making an otherwise legally justified decision. It is one thing to incur this cost on proof of a racially discriminatory or other unconstitutional motive, but less justified to do so when the decisionmaker offers a “contrived” rationale when a legally appropriate rationale was available to him. Will all administrative decisions be subject to a search of which reasons actually prompted the decision?
That question raises perhaps most serious difficulty with the search for pretext. Building on the problems inherent in Overton Park review, such an inquiry may entail protracted discovery and lengthy factfinding proceedings undermining the ability of any administration to deliver within a reasonable time regulatory change promised to the electorate The motives of agency decisionmakers are not unitary or easily packaged. Their motives invariably involve a mix of political and strictly relevant legal factors. It is unlikely agency heads come into office without prior views, some firmly held, on controversial matters likely to come before them. It is thus doubtful that any decision on the content of the census questionnaire would be wholly divorced from political consideration of which party would benefit from the inclusion or omission of a particular question. It is also both doubtful and undesirable that the Secretary of Commerce would make this decision on his own, without consulting other stakeholders within the executive branch. Sometimes, the President or his advisors may be the real moving force, and it may be politically opportune to suggest that the initiative came from another source.
Because of the risk that review for pretext will result in litigation designed simply to stall agency action, and the ability of courts in most cases to implement the APA’s reasoned decision-making requirement without having to unearth the “real” reason for agency action, we should treat Department of Commerce as a sport and limit its generative power by confining the decision to its facts. As Chief Justice Roberts’s opinion recognized, this case is one where the Secretary went too far in misattributing the impetus for his decision. You can be oblique and maybe not fully forthcoming, but you cannot blatantly lie, forcing a court to engage in review of a “contrived” rationale for agency action. Ross’s March 24, 2018, memorandum explaining his reasons for reinstating the citizenship question on the 2020 census states clearly that he was acting at the request of DOJ that “the Census Bureau reinstate a citizenship question on the decennial census to provide census block level citizenship voting age population … data that are not currently available for government survey data,” and that “having these data at the census block level will permit effective enforcement of the Act. Section 2 [of the Voting Rights Act] protects minority populating voting rights.” The Secretary’s affirmative misstatement as to the origin of the request created the false impression that there was an element of external necessity tipping the balance in favor of asking the citizenship question: “I find that the need for accurate citizenship data and the limited burden that the reinstatement of the citizenship question would impose outweigh fears of a potentially lower response rate.” Further, “even if there were some impact on responses, the value of more complete and accurate data [on citizenship] on citizenship from surveying the entire population outweigh such concerns.”
This was a case of material misrepresentation of critical facts and, as the Court intimated, should be limited accordingly.