Editor’s Note: Jennifer Rodgers is a CNN Legal Analyst, a Lecturer-in-Law at Columbia Law School, and a former federal prosecutor in the United States Attorney’s Office for the Southern District of New York. The opinions expressed in this commentary are her own; view more opinion articles at CNN.
On Tuesday, Judge Jesse Furman ruled against the Trump administration and secretary of commerce Wilbur Ross’s decision to add a question about citizenship to the 2020 US census questionnaire. (In the interests of transparency, Judge Furman and I were colleagues in the US Attorney’s Office in Manhattan during his time there between 2004 and 2011.)
In my view, Furman properly found the addition of the citizenship question to be unlawful as a violation of the Administrative Procedures Act (APA), ordering the question to be stricken from the census. While this is an important ruling that I believe is likely to be confirmed by higher courts, we are months away from the last word on the matter given the Trump Administration has said it plans to appeal the order.
This closely watched legal action was brought in federal district court in Manhattan by two groups of plaintiffs, comprises numerous states and municipalities and various civil rights organizations. Ross and the other government defendants contended that the addition of the citizenship question was at the request of the US Department of Justice for better data to enforce the Voting Rights Act. The plaintiffs, however, argued that the question – which had not appeared on the census questionnaire since 1950 – was added for political reasons, namely to discourage non-citizens from completing the census form, thereby disadvantaging their communities.
The plaintiffs’ case appeared strong on the surface – after all the census, which happens only every 10 years, is critical for determining how districts are drawn for elections and for allocating federal funding, and is meant to count all US residents, not merely citizens.
But Furman’s comprehensive ruling encompasses much more than just whether Ross’s decision to include the question was unlawful in its result. The APA, which may be the most important federal law you’ve never heard of, prohibits federal agencies from acting “in a manner that is arbitrary and capricious.” That means for federal government decision makers, process is as important as the result: They must collect data in prescribed ways, act rationally in considering the evidence collected, justify meaningful departures from past policies, follow procedures required by law and explain the true reasons behind an agency decision.
These process questions are vital as a check on our executive branch, to make sure that they are acting in good faith, as well as reaching the right result. Furman ruled that Ross failed miserably when the legal requirements were considered, finding “a veritable smorgasbord of classic, clear-cut APA violations.”
Indeed, Furman determined during a two-week non-jury trial in November, that Ross’s claimed rationale for adding the citizenship question was pretextual, meaning it was not the actual reason. (Though the record did not contain enough evidence to determine the true reason, Furman suggested this was perhaps because his order that Ross be deposed was blocked by the Supreme Court).
Expert testimony from Census Bureau witnesses indicated that the question’s addition would result in a meaningful “reduction of response rates in non-citizen and Hispanic households.” What’s more, the Census Bureau strenuously objected to the question because it would harm the quality of the data and increase costs substantially without good reason.
These fairly blunt findings and many others were amply supported in the judge’s painstaking and comprehensive review of the evidence, which is why I believe appellate courts will be forced to agree with his opinion.
So, is there any good news for Ross and the other defendants?
One bit, which serves to demonstrate the evenhandedness of the judge’s ruling: Furman ruled in Ross’s favor on the plaintiffs’ charge that the decision to add the citizenship question violated plaintiffs’ rights to equal protection under the constitution, because there was not sufficient evidence to show discriminatory intent on Ross’s part. But at the end of the day, this partial victory doesn’t mean much. Furman’s ruling on the APA violation dictates that, for now, the citizenship question is barred from appearing on the 2020 census questionnaire. There are, however, still at least two unresolved court cases – in California and Maryland – considering the same issues, and Furman’s decision will be appealed by the Trump Administration, perhaps all the way to the Supreme Court.
How the high court will react to the case is unknown, of course, but hopefully the justices will keep two things in mind: First, the deference to Judge Furman’s findings of fact that they are legally bound to give; and second, that securing a political advantage for Republicans, and a victory for the Trump Administration, is not a proper basis for deciding any matter, particularly when it would mean undermining well-settled administrative law.