Until late last week, the Supreme Court was preparing to hear oral argument in a case presenting the question whether Federal District Judge Jesse Furman erred by ordering discovery outside of the administrative record to discern the motives behind the Trump administration’s decision to add a question concerning citizenship to the 2020 census. In an unusual move, the Court had agreed to hear the discovery dispute last November—before Judge Furman had completed his consideration of the merits. In the interim, he conducted a trial.
Last week, Judge Furman issued a 277-page opinion setting forth his findings of fact and conclusions of law. That opinion concludes that Secretary of Commerce Wilbur Ross committed multiple violations of the Administrative Procedure Act (APA). It enjoins the government from including a citizenship question on the census, at least absent substantial additional administrative homework. Notably, Judge Furman made his APA ruling “without relying on extra-record evidence.” Accordingly, the plaintiffs asked the Supreme Court to dismiss the discovery dispute as moot. The Court quickly responded by removing the case from the oral argument calendar and suspending briefing.
The census case as a whole may well return to the high Court’s docket for consideration of the merits of Judge Furman’s finding of an APA violation. As his opinion observes, “the integrity of the census is a matter of national importance,” because “the population count has massive and lasting consequences.” Thus, yesterday the Solicitor General declared his intention to seek expedited review so that the high Court can resolve the merits before it recesses at the end of June.
Meanwhile, the mooted issue warrants further consideration. In the balance of this column, I first explain why certain sorts of government motive questions are vexing in general; I then ask whether the calculus should shift due to the pervasive bad faith of the Trump administration.
The Legal Relevance of Motive
In its petition to the Supreme Court last fall, the government contended that the discovery dispute in the census case presented the question of the circumstances under which a district court may allow discovery outside the administrative record in order to “probe the mental processes of the agency decisionmaker.” That is a procedural question, but it connects to a more fundamental substantive one: When does the mental state of a government actor affect the legality of the government’s action?
We know that the answer is not never. For example, under longstanding precedents interpreting the constitutional principle of equal protection, a facially neutral law or policy that has a disparate impact based on some illicit criterion (such as race or sex) will be subject to heightened judicial scrutiny if the government adopted the law or policy for the purpose of discriminating based on that illicit criterion. As the Supreme Court pithily explained in a 1979 case, the question in such a case is whether “the decisionmaker . . . selected or reaffirmed a particular course of action at least in part ‘because of,’ not merely ‘in spite of,’ its adverse effects upon an identifiable group.”
Motive questions can arise in statutory cases as well. The APA authorizes a reviewing court to set aside agency action that is arbitrary or capricious. Whether that standard is met will sometimes depend on whether the agency decision maker(s) acted in bad faith, as the Supreme Court recognized in a 1971 case. The government in its brief in the now-moot discovery case before the Supreme Court argued that the bad faith doctrine permits extra-record review only in very narrow circumstances, but even it acknowledged that government motive can be relevant to a determination of the lawfulness of agency action under the APA.
Two Problems with Government Motive Tests
It should not be at all surprising that different legal consequences can attach to an action, depending on the motive behind the action. Early in his 1881 magnum opus, The Common Law, Oliver Wendell Holmes, Jr., dramatized the importance of motivation in the law with a canine example. “Even a dog,” Holmes observed, “distinguishes between being stumbled over and being kicked.” The difference between an unavoidable accident and a malicious action that has the same result could be the difference between no liability and a substantial prison sentence.
Nonetheless, government motive tests are controversial for at least two reasons. First, frequently the government decision maker is a collective body like a legislature, rather than a single mind. While even one person’s motives may be mixed, discerning the intention behind a decision taken by hundreds of people will usually be more a matter of construction than discovery.
Second, in purely private disputes and criminal prosecutions, the motive question typically arises because a judge or jury needs to assess retrospective liability. Depending on the defendant’s mental state, he may need to pay damages, or, in a criminal case, go to prison. By contrast, cases involving government motive typically arise (as in the census case) when the plaintiff seeks an injunction. That can then lead to a tricky remedial question.
Consider a stylized example. Suppose that a city council decides to site a sewage treatment plant near a predominantly minority neighborhood. Residents of the neighborhood sue and prove that several council members voted to put the treatment plant where they did out of racial animus. They acted because rather than in spite of race. The city will be properly enjoined from siting the plant there. But for how long? What if the racist council members are defeated in the next election, but the city, still in need of a sewage treatment plant, hires an outside expert who concludes that the original site best accommodates the city’s needs, including the cost of acquiring land? Does that purge the taint of the original decision? What if the council’s membership had not changed in the interim?
Puzzles such as these have led some jurists and scholars to question whether subjective motive should ever be the basis for invalidating an otherwise permissible government action. The doubters have not prevailed; government motive tests remain; nonetheless, judges understandably deploy them cautiously.
The Trumpian Complication
Should judges abandon that caution in the face of the Trump administration? The Supreme Court’s ruling in the travel ban case last June is instructive.
The travel ban is not that different from my hypothetical sewage treatment plant example. By the time the case got to the Supreme Court, the government had done sufficient homework to come up with at least a prima facie plausible explanation for the third version of the ban. However, everyone knew that the ban originated with then-candidate Donald Trump’s call for a “total and complete shutdown of Muslims entering the United States.” Did the homework undertaken by the Department of Homeland Security, the State Department, and various US intelligence agencies purge the taint of Trump’s religious animus?
The Court thought so. Chief Justice Roberts wrote for the 5-4 majority that it would be inappropriate to conduct a “searching inquiry into the persuasiveness of the President’s justifications” given “the broad statutory text and the deference traditionally accorded the President in” matters of border control and national security. Concurring, Justice Kennedy added that even when “the statements and actions of Government officials are not subject to judicial scrutiny or intervention,” those officials must “adhere to the Constitution and to its meaning and its promise,” including its prohibition on religious discrimination. Roberts, Kennedy, and the rest of the Supreme Court majority were effectively saying that in some spheres, responsibility for adhering to the Constitution and laws rests with the president, not the courts.
That might be a defensible judgment during a normal presidential administration, but in the current environment, it licenses lawlessness.
Across a wide range of areas, federal agencies appear to be providing pretexts for illicit motives and impetuous statements. Candidate Trump calls for a Muslim ban; his advisers reverse-engineer entry restrictions to have a disparate impact on Muslims. President Trump tweets that transgender individuals will not be permitted to serve “in any capacity” in the armed forces; his Defense Department tries to construct a set of exclusions that can withstand legal challenge. Someone in the administration (if not Trump himself) concludes that asking a citizenship question on the census will under-count persons in Democratic-leaning districts; Commerce Secretary Ross seeks (as Judge Furman put it in last week’s ruling) to “launder” the question through the Justice Department on the pretense that the latter needs citizenship information to enforce the Voting Rights Act.
In order to prevent courts from second-guessing elected officials in areas where judges may lack expertise or political legitimacy, the law sets the threshold for a judicial finding of illicit government motive very high. In my view, the Trump administration should lose most if not all of the illicit motive cases against it, because even the high threshold has been crossed. However, as the travel ban litigation illustrates, many jurists are willing to accept a patina of legality rather than impugn the motives of the president.
Deference to the executive branch and the presumption of government regularity are important tools of judicial self-restraint. But there comes a point where even a restrained judiciary that does not wish to overstep its authority must recognize that a mendacious president and his lackeys are playing the courts. We have reached that point. Indeed, we are well past it. Trump’s relentless dishonesty and the willingness of his administration to cloak his malice in legal jargon should suffice to overcome the deference ordinarily due a president.
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