INTRODUCTION...773
BACKGROUND...775
LEGAL STANDARDS...780
DISCUSSION...780
A. Standing...781
1. Injury-in-Fact...781
2. Traceability...785
3. NGO Plaintiffs' Standing...788
B. The Political Question Doctrine...790
C. The Administrative Procedure Act...793
D. The Enumeration Clause...799
E. The Equal Protection Claim...806
CONCLUSION...811
INTRODUCTION
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
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"),
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
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.
BACKGROUND
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
Significantly, consistent with the constitutional text, the decennial census endeavors to count all residents of the United States, regardless of their legal status. See
The inquiries on the second and third censuses were largely the same as the first. See MEASURING AMERICA 6; see also Act of Feb. 28, 1800 ("1800 Census Act"),
The fifth census in 1830 - which was the first to rely on standardized, pre-printed forms - tallied all "white persons" who were "ALIENS - Foreigners not naturalized." Act of March 23, 1830 ("1830 Census Act"),
The questions in 1860 and 1870 were largely the same as those in 1850, although the 1870 census also included a question about whether the respondent's father or mother was "of foreign birth" and an explicit inquiry (no doubt prompted by the Civil War and ratification of the Fourteenth Amendment) as to "[m]ale [c]itizens of U.S. of 21 years of age and upwards, whose right to vote is denied or abridged on other grounds than rebellion or other crime." See MEASURING AMERICA 13. The 1880 census asked for the birthplaces of the respondent and of each respondent's parents ("naming the State or Territory of the United States, or the Country, if of foreign birth"). See id. at 17. The 1880 census was also the first to be conducted by a newly established census office, led by the Superintendent of the Census and lodged in the Department of the Interior. See WRIGHT, HISTORY AND GROWTH 58-59. The census office prescribed similar questions for the 1890 census, asking for the respondent's and his or her parents' places of birth and, additionally, whether the respondent was naturalized and whether "naturalization papers have been taken out." MEASURING AMERICA 22.
In the early 20th century, the federal government continued to use the census to gather data regarding citizenship and other topics.
The 1960 census marked a departure from previous censuses in several respects. See generally MARGO J. ANDERSON, THE AMERICAN CENSUS: A SOCIAL HISTORY 201-06 (1988). For one, it was the first census to rely principally on the mail to distribute
Notably, the 1960 census was the first since 1840 not to include a question about citizenship (or birthplace) for all residents. It did, however, ask all residents of New York and Puerto Rico about citizenship - the former "at the expense of the State, to meet State constitutional requirements for State legislative apportionment" and the latter, at the request of a census advisory committee, "to permit detailed studies of migration." 1960 CENSUSES OF POPULATION AND HOUSING 10, 130. In a review of the census, the Census Bureau explained the decision not to ask all respondents about citizenship as follows: "It was felt that general census information on citizenship had become of less importance compared with other possible questions to be included in the census, particularly in view of the recent statutory requirement for annual alien registration which could provide the Immigration and Naturalization Service, the principal user of such data, with the information it needed." Id. at 194.
Between 1970 and 2000, the census continued to feature a short questionnaire distributed to the vast majority of the population (known as the "short-form census") and a longer questionnaire, which included both the inquiries on the shorter questionnaire as well as additional questions, distributed to a sample of the population (known as the "long-form census"). During that time, none of the short-form questionnaires included a question about citizenship or birthplace. See MEASURING AMERICA 77 (1970), 84 (1980), 91 (1990), 100 (2000). But each long-form census, which went to approximately one sixth of households, did. See id. at 78 (1970), 85 (1980), 92 (1990), 101 (2000). In 2010, the Census Bureau dropped the long-form questionnaire altogether, a change that was precipitated by the introduction, in 2005, of the American Community Survey ("ACS"). See JENNIFER D. WILLIAMS, THE 2010 DECENNIAL CENSUS: BACKGROUND AND ISSUES 3 (2011), available at https://www.census.gov/history/pdf/2010-background-crs.pdf. Unlike the decennial census, the ACS is conducted annually and is not used to obtain an "actual Enumeration" of the population for purposes of apportionment; instead, it is given each year to only about 3.5 million households - roughly one in every thirty-eight households in the country - for the sole purpose of collecting demographic data on the population. (SAC ¶¶ 74, 98 n.43). The ACS "requires citizens to disclose whether they were born in 'United States territories,' whether they were born 'abroad' to U.S. parents, or if and when they were 'naturalized.' " (Id. ¶ 76).
Thus, the last time that the census asked every respondent about citizenship was sixty-eight years ago, in 1950. Notably, since then, the Census Bureau and former Bureau officials have opposed periodic efforts to reinstate a citizenship question on a universal basis. In 1980, for example, several plaintiffs (including the Federation for American Immigration Reform, which appears here as amicus curiae in support of Defendants) sued the Census Bureau, contending that the census was constitutionally required to count only citizens. Fed'n for Am. Immigration Reform ,
Earlier this year, however, the Census Bureau reversed course. Specifically, on March 26, 2018, Secretary Ross issued a memorandum directing the Census Bureau to reinstate the citizenship question on the 2020 decennial census. (SAC ¶ 3; see also Docket No. 173 ("Admin. Record"), at 1313-20 ("Ross Mem.") ).
These lawsuits (and others, elsewhere) followed.
LEGAL STANDARDS
Defendants move to dismiss pursuant to Rules 12(b)(1) and 12(b)(6). A Rule 12(b)(1) motion challenges the court's subject-matter jurisdiction to hear the case. "A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it." Makarova v. United States ,
By contrast, a Rule 12(b)(6) motion tests the legal sufficiency of a complaint and requires a court to determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a plausible claim for relief. Ashcroft v. Iqbal ,
DISCUSSION
Defendants make four arguments with respect to the operative complaints in both cases, and one argument unique to NGO Plaintiffs' Complaint in 18-CV-5025. First, they contend that Plaintiffs in both cases lack Article III standing because Plaintiffs do not allege an injury-in-fact that is fairly traceable to Defendants' conduct. (See Docket No. 155 ("Defs.' Br."), at 13-21). Second, they assert that all of the claims pressed by Plaintiffs are barred by the
A. Standing
Article III of the Constitution restricts the "judicial Power" of the United States to "Cases" and "Controversies." U.S. C ONST .art. III, § 2. In light of that restriction, a party invoking the court's jurisdiction - the plaintiff - must have "standing" to sue. See, e.g., Clapper v. Amnesty Int'l USA ,
In this case, Defendants contend that Plaintiffs fail to establish that they have been injured in fact and that any injury is traceable to the challenged conduct. (See Defs.' Br. 13-14). Additionally, they make a handful of arguments specific to whether NGO Plaintiffs have standing. (See Defs.' NGO Br. 4-15). The Court will address the common arguments first.
1. Injury-in-Fact
The injury-in-fact requirement is meant to "ensure that the plaintiff has a 'personal stake in the outcome of the controversy.' " Susan B. Anthony List v. Driehaus , --- U.S. ----,
Plaintiffs' theory of injury proceeds in two steps, each of which is amply supported by allegations in their operative complaints - allegations that the Court must assume are true in deciding this motion. First, Plaintiffs contend that Defendants' inclusion of a citizenship question on the census will "drive down response rates and seriously impair the accuracy of the decennial population count." (SAC ¶ 39; accord NGO Compl. ¶ 4). In support of that assertion, Plaintiffs proffer an array of evidence - much of it from Defendants themselves. For instance, Plaintiffs cite the Census Bureau's own argument in 1980 that "any effort to ascertain citizenship will inevitably jeopardize the overall accuracy of the population count" because "[q]uestions as to citizenship are particularly sensitive in minority communities and would inevitable trigger ... refusal to cooperate." (SAC ¶ 40 (quoting Fed'n for Am. Immigration Reform ,
The second step in Plaintiffs' argument is that this "undercounting" will result in various concrete harms to them and their constituents or members. (See, e.g. , SAC ¶ 105 ("[I]n 2014, New York State had the fourth largest population of undocumented residents in the nation."); see id. ¶¶ 104-38; see also, e.g. , NGO Compl. ¶ 52 ("Make the Road New York members ... will be deprived of political influence and funding ....") ). For example, Plaintiffs identify various federal programs, including "the Highway Trust Fund program, the Urbanized Area Formula Funding program, the Metropolitan Planning program, and the Community Highway Safety Grant program," which "distribute funds based, at least in part, on population figures collected through the decennial census." (SAC ¶ 140 (citing
In response, Defendants contend that Plaintiffs' allegations are "too speculative" because they rely on a highly attenuated chain of inferences. (Defs.' Br. 14). That may ultimately prove to be the case, but Defendants' contentions are misplaced at this stage in the litigation, when Plaintiffs "bear[ ] no evidentiary burden." John ,
Next, Defendants claim that the Census Bureau "has extensive procedures in place to address non-response and to obtain accurate data for those households that decline to respond." (Defs.' Br. 15). Defendants repackaged this argument slightly in their reply brief, (Defs.' Reply Br. 4), and
Finally, Defendants claim that Plaintiffs' allegations regarding loss of representation and federal funding are "too speculative" because apportionment and the allocation of funds are both "complex" and could be affected by, among other things, "potential undercounting in other states." (Defs.' Br. 16-18).
In short, taking Plaintiffs' allegations as true, the Court concludes that they establish a "substantial risk" of harm and thus satisfy the injury-in-fact requirement.
2. Traceability
As noted, to establish Article III standing, a plaintiff must also demonstrate that his or her injury is "fairly traceable" to the challenged actions of the defendant. Lujan ,
The Second Circuit's recent decision in NRDC is instructive. In that case, the petitioners - five states and three nonprofit organizations - claimed that the National Highway Traffic Safety Administration ("NHTSA") violated the APA when it indefinitely delayed the effective date of a rule that would have increased penalties for violations of certain vehicle environmental standards. NRDC ,
Applying those standards to Defendants' motions to dismiss, Plaintiffs meet their traceability burden. Plaintiffs allege that reinstating the citizenship question "will lead to nonresponse and lower participation" in the census, which will, in turn, cause financial and representational injuries to Plaintiffs. (SAC ¶ 53; see id. ¶ 159 (alleging that adding a citizenship question will "depress[ ] participation in the decennial census within Plaintiffs' diverse naturalized, documented, and undocumented immigrant populations"); see also NGO Compl. ¶¶ 4-5). Plaintiffs further allege that "immigrant respondents are ... increasingly concerned about confidentiality and data sharing in light of the current anti-immigrant rhetoric," and "may seek to protect their own privacy or the privacy of their household" by not responding to the census. (SAC ¶¶ 50, 53; accord NGO Compl. ¶ 127). Moreover, like the petitioners in NRDC , Plaintiffs support these allegations with evidence from Defendants themselves. (See, e.g. , SAC ¶ 51 ("Census Bureau officials have noted that in routine pretests conducted from February 2017 to September 2017, 'fears, particularly among immigrant respondents, have increased markedly this year.' "); id. ¶ 52 (quoting the Census Bureau's conclusion that their findings after a census pretest were "particularly troubling given that they impact hard-to-count populations disproportionately, and have implications for data quality and nonresponse"); NGO Compl. ¶¶ 81-90). Plaintiffs thus plead a "substantial likelihood of the alleged causality." NRDC ,
Relying heavily on the Supreme Court's decisions in Clapper and Simon , Defendants contend that "the intervening acts of third parties" - namely, those who refuse to comply with their legal duty to respond to the census questionnaire - break the chain of causation in these cases for purposes of standing. (Defs.' Br. 19-20). But that argument "wrongly equates injury 'fairly traceable' to the defendant with injury as to which the defendant's actions are the very last step in the chain of causation." Bennett ,
The injuries alleged in Clapper and Simon also differ in an important respect from the injuries alleged in the instant cases. In those two cases, the plaintiffs' standing turned on their ability to prove that the defendants' conduct would cause injury to particular individuals. That is, in Clapper , each plaintiff had to show that his or her own communications would likely be intercepted by surveillance conducted pursuant to the provisions at issue. See
Finally, Defendants make much of the fact that the actions of the intervening third parties - namely, residents who fail to respond to the census - would be illegal. (Defs.' Br. 20; 18-CV-5025, Docket
3. NGO Plaintiffs' Standing
As noted, Defendants make a handful of additional arguments with respect to the standing of NGO Plaintiffs - namely, that they lack standing to sue on their own behalf, that they lack standing to sue on behalf of their members, and that they lack "third-party" standing to assert the constitutional rights of their members. (See Defs.' NGO Br. 4-15). For an organization to establish standing to bring suit on behalf of its members - known as "associational standing" - the organization must show that: "(a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization's
Here, at least one NGO Plaintiff - namely, Make the Road New York ("Make the Road") - plainly satisfies those requirements. Make the Road "has more than 22,000 members who reside in New York City, Long Island and Westchester County." (NGO Compl. ¶ 50). Its "mission is to build the power of immigrant and working class communities to achieve dignity and justice." (Id. ¶ 49). The Complaint alleges that the organization's members reside in communities where "Latino immigrant populations ... exceed the national and state averages." (Id. ¶ 51). It further alleges that New York State and its subdivisions use census data to draw congressional, state legislative, and municipal legislative districts. (Id. ¶¶ 72-73). Consequently, the Complaint alleges, the undercount likely caused by including the citizenship question "will reduce" both "the amount of federal funds" distributed to the communities in which Make the Road members live and their "political power." (Id. ¶ 52; see also id. ¶ 73 ("[W]hen a local community in any of these [jurisdictions] is disproportionately undercounted in the Decennial Census, the community will be placed in a malapportioned legislative district that has greater population that other legislative districts in the same state.") ). Notably, the Complaint specifically identifies one such member, Perla Lopez of Queens County, which has a large population of Latino and immigrant residents. (Id. ¶ 53). Affidavits - which the Court may consider, see Thompson v. Cty. of Franklin ,
These allegations suffice to establish that Make the Road has associational standing. As discussed above, the Second Circuit and Supreme Court have made clear that both fiscal and representational injuries resulting from an alleged undercount are sufficient to support standing. See Carey ,
Defendants also contend that NGO Plaintiffs lack standing to bring their equal protection claim because they fail to "satisfy the third-party standing exception to
In sum, the Court concludes that Make the Road has associational standing. Accordingly, it need not and does not address the standing of the other NGO Plaintiffs or Defendants' other arguments. See, e.g., Centro de la Comunidad Hispana de Locust Valley ,
B. The Political Question Doctrine
Next, Defendants contend that all of Plaintiffs' claims should be dismissed on the basis of the political question doctrine. (Defs.' Br. 21-26). Although a court generally has "a responsibility to decide cases properly before it," there is a well-established but "narrow exception to that rule, known as the political question doctrine." Zivotofsky ex rel. Zivotofsky v. Clinton ,
Defendants have a tough sell because courts, including the Supreme Court and the Second Circuit, have entertained challenges to the conduct of the census for decades and, more to the point, have consistently rejected application of the political question doctrine in such cases. See, e.g., U.S. Dep't of Commerce v. Montana ,
Defendants contend that those cases are all distinguishable because they challenged whether the government had conducted an "actual Enumeration," while the instant case challenges the "manner" in which the census was conducted. (Defs.' Reply Br. 7-8). But that is not true. In fact, at least two of the cases involved challenges to the census questionnaire itself - precisely the kind of challenge brought here. See Morales ,
Relying on Steel Company , Defendants try to dismiss the analysis in Carey on the ground that it was so "scant ... as to constitute the type of 'drive-by jurisdictional ruling[ ]' that 'ha[s] no precedential effect.' " (Defs.' Br. 26 n.14 (alterations in original) (quoting Steel Co. ,
More broadly, the distinction upon which Defendants' argument rests - between "enumeration" cases and "manner" cases - is ultimately a false one. Defendants try to explain away the Supreme Court's repeated review of how the Secretary has conducted the census on the ground that its cases "[a]ll have concerned calculation methodologies, not pre-count information-gathering functions or content determinations." (Defs.' Br. 25 (citing cases) ). But - Defendants' ipse dixit aside - challenges to "calculation methodologies," whether they be to "hot-deck imputation" (a process whereby the Census Bureau fills in certain missing information about an address by relying on other information in the Bureau's possession), Evans ,
Defendants are on even shakier ground to the extent that they invoke the political question doctrine to seek dismissal of NGO Plaintiffs' equal protection claim. (Defs.' NGO Br. 15). Defendants do not specifically argue that the political question doctrine should bar that claim; instead, they merely incorporate the arguments they make in connection with Government Plaintiffs' claims by reference. Regardless, any such arguments would be fruitless, as the Supreme Court made plain in Baker v. Carr ,
In short, Defendants' sweeping argument that the federal courts have no role to play in adjudicating the parties' disputes in these cases is squarely foreclosed by precedent. To be sure, the Constitution "vests Congress with wide discretion over ... the conduct of the census." Wisconsin ,
C. The Administrative Procedure Act
Defendants' third argument is specific to Plaintiffs' APA claims. (Defs.' Br. 26-30). The "generous review provisions" of the APA provide for judicial review of " 'final agency action for which
Pursuant to Section 701(a)(2), " 'review is not to be had' in those rare circumstances where the relevant statute 'is drawn so that a court would have no meaningful standard against which to judge the agency's exercise of discretion.' " Lincoln v. Vigil ,
Defendants contend that this is one of the rare circumstances in which Congress clearly intended to preclude judicial review of agency action. (Defs.' Br. 26-30). They base that contention primarily on the language of the Census Act, which - as amended in 1976 - provides that the Secretary "shall ... every 10 years ... take a decennial census of population ... in such form and content as he may determine , including the use of sampling procedures and special surveys."
This argument falls short for at least four independent reasons. First, as with Defendants' standing and political question doctrine arguments, it is foreclosed by Carey , in which the "Second Circuit explicitly rejected the contention that a federal court is precluded by operation of § 701(a)(2) from reviewing the Secretary's action." City of N.Y. v. U.S. Dep't of Commerce ,
Second, Defendants' argument is flawed because, in contrast to the statute at issue in Webster , the language of the Census Act as a whole does not "fairly exude[ ] deference" to the agency.
So too here, the Census Act imposes any number of mandatory duties upon the Secretary. See, e.g. ,
Third, and relatedly, Defendants' argument fails substantially for the reasons set forth in Justice Stevens's persuasive concurring opinion in Franklin , which was joined by three other Justices. See
Finally, as Justice Stevens and many other courts have made clear, there are in fact judicially manageable standards with which courts can review the Secretary's decisions. See
Additionally, the "statutory command ... embodies a duty to conduct a census that is accurate and that fairly accounts for the crucial representational rights that depend on the census and the apportionment."
In short, "the statutory framework and the long-held administrative tradition provide a judicially administrable standard of review." Franklin ,
D. The Enumeration Clause
Although all of Plaintiffs' claims are justiciable, that does not mean that they are valid. Defendants do not make other arguments to dismiss Plaintiffs' APA claims at this stage, but they do contend that Plaintiffs failure to state claims under the Constitution. (See Defs.' Br. 30-35; Defs.' NGO Br. 16-19). The Court turns, then, to Plaintiffs' claims under the Enumeration Clause, which provides in relevant part that an "actual Enumeration shall be made" every ten years "in such Manner as [Congress] shall by Law direct." U.S. C ONST .art. 1, § 2, cl. 3. Plaintiffs' claims fail, Defendants argue, because "[t]here is no allegation that the Secretary is estimating rather than counting the population, nor any allegation that he has failed to establish procedures for counting every resident of the United States.... Moreover, the Secretary's decision to reinstate a citizenship question is consistent with historical practice dating back to the founding era." (Defs.' Br. 30). Plaintiffs counter that the "substantial discretion" of Congress and the Secretary in conducting the census "is not unlimited; it does not include a decision to altogether abandon the pursuit of accuracy or to privilege other, non-constitutional values above it." (Pls.' Br. 32). Relying on language from the Supreme Court's decision in Wisconsin , they contend that reinstating the citizenship question violates the Enumeration Clause because it "does not bear 'a reasonable relationship to the accomplishment of an actual enumeration of the population, keeping in mind the constitutional purpose of the census' " to aid in the apportionment of Representatives. (Id. (quoting Wisconsin ,
The Court's analysis of Plaintiffs' claims under the Enumeration Clause is guided by three background considerations. First, the "text" of the Clause itself "vests Congress with virtually unlimited discretion in conducting the decennial 'actual Enumeration.' " Wisconsin ,
Second, as Plaintiffs conceded at oral argument, the inquiry with respect to the Enumeration Clause is an "objective" one. (See Oral Arg. Tr. 51). That is, there is nothing in either the text of the Enumeration Clause itself or judicial precedent construing the Clause to suggest that the relevant analysis turns on the subjective intent of either Congress or the Secretary.
Third, in interpreting the Enumeration Clause, the Court "put[s] significant weight upon historical practice." N.L.R.B. v. Noel Canning , --- U.S. ----,
In light of those considerations, the Court is compelled to conclude that the citizenship question is a permissible - but by no means mandated - exercise of the broad power granted to Congress and, in turn, the Secretary pursuant to the Enumeration Clause of the Constitution. The Court is particularly compelled to reach that conclusion by historical practice, which demonstrates that the census has been consistently used - since the Founding era -for an end unrelated to the "actual Enumeration" textually contemplated by the Enumeration Clause: to collect data on residents of the United States. For example, the nation's first census, taken in 1790, included information about age and sex, in order to "assess the countries [sic ] industrial and military potential." M EASURING A MERICA 5; see 1790 Census Act § 1,
In fact, the longstanding practice of asking questions about the populace of the United States without a direct relationship to the constitutional goal of an "actual Enumeration" has been blessed by all three branches of the federal government. Until the 1930 census, Congress itself "specified minutely" the "details of the questions" on the census. U.S. GENERAL ACCOUNTING OFFICE, DECENNIAL CENSUS: OVERVIEW OF HISTORICAL CENSUS ISSUES 22 (1998), available at https://www.gao.gov/pdfs/GGD-98-103; see also, e.g. , 1820 Census Act,
The Supreme Court and lower courts have long and consistently blessed the practice as well. As far back as 1871, for example, the Supreme Court took as a given that Congress could use the census to gather statistical information beyond that required for an "actual Enumeration":
Congress has often exercised, without question, powers that are not expressly given nor ancillary to any single enumerated power.... An[ ] illustration of this may be found in connection with the provisions respecting a census. The Constitution orders an enumeration of free persons in the different States every ten years. The direction extends no further. Yet Congress has repeatedly directed an enumeration not only of free persons in the States but of free persons in the Territories, and not only an enumeration of persons but the collection of statistics respecting age, sex, and production. Who questions the power to do this?
Legal Tender Cases ,
Admittedly, the Supreme Court has never confronted a direct challenge to the questions posed on the census. But a handful of lower courts, including the Second Circuit and this Court, have - and have universally rejected such challenges as meritless. See United States v. Rickenbacker ,
By itself, the foregoing history makes it difficult to maintain that asking about citizenship on the census would constitute a violation of the Enumeration Clause. Taking that position becomes untenable altogether in light of the undeniable fact that citizenship status has been a subject of the census for most of the last two hundred years. Congress itself first included a question about citizenship on the fourth census, in 1820. SeeM EASURING A MERICA 6 (noting that the 1820 census included questions "to ascertain the number of foreigners not naturalized"); see 1820 Census Act,
Thus, for two centuries, there has been a nearly unbroken practice of Congress either expressly including a question concerning citizenship on the census or authorizing (through delegation of its power and its non-intervention) the executive branch to do so. This history is significant for two reasons. First, as noted, the Supreme Court has made clear that "[l]ong settled and established practice" can be given "great weight" in construing constitutional provisions that define the scope of the political branches' powers. Noel Canning ,
In short, the "virtually unlimited discretion" granted to Congress by the text of the Constitution, Wisconsin ,
Neither argument is persuasive. First, Wisconsin cannot be read to suggest, let alone hold, that each and every question on the census must bear a "reasonable relationship" to the goal of an actual enumeration. Doing so would contravene the Supreme Court's own acknowledgement that the census "fulfills many important and valuable functions," including "in the allocation of federal grants to states based on population" and in "provid[ing] important data for Congress and ultimately for the private sector." Baldrige ,
To read Wisconsin as Plaintiffs suggest would, therefore, lead ineluctably to the conclusion that each and every census - from the Founding through the present - has been conducted in violation of the Enumeration Clause. That would, of course, be absurd, and leads the Court to conclude instead that the Wisconsin standard applies only to decisions that bear directly on the actual population count. Notably, the Supreme Court's own language supports that limitation, as it held only that "the Secretary's decision not to adjust " the census count "need bear only a reasonable relationship to the accomplishment of an actual enumeration of the population."
Plaintiffs' second argument -based on the conduct of the Census Bureau since 1960 - is also unpersuasive. That history may support the contention that reintroducing the citizenship question is a bad decision - and that, in turn, may be relevant to whether Plaintiffs can establish a violation of the APA or the Due Process Clause, both of which invite examination into the Secretary's bases for making that decision. But nothing in the history of the census, recent or otherwise, plausibly suggests that asking a citizenship question is beyond the scope of Congress's broad power under the Enumeration Clause - which is the sole relevant question for purposes of Plaintiffs' Enumeration Clause claims. Moreover, Plaintiffs' argument from recent history ignores the fact that citizenship did appear on all but one of the censuses since 1960. To be sure, it did so for only a portion of the population, but that fact alone has no constitutional significance. If Congress and the Secretary lack authority under the Enumeration Clause to ask about citizenship on the census, they could not ask about it of anyone, whatever the length of the questionnaire. Conversely, if the Enumeration Clause permits Congress
For the foregoing reasons, the Court holds that Plaintiffs do not - and cannot - state a plausible claim that addition of the citizenship question on the 2020 census constitutes a violation of the Enumeration Clause. That does not mean - as Defendants have audaciously argued (see Oral Arg. Tr. 48) - that there are no constitutional limits on Congress's and the Secretary's discretion to add questions to the census questionnaire. First, there is "a strong constitutional interest in accuracy," Evans ,
Second, to say that the Secretary has authority under the Enumeration Clause to ask about citizenship on the census is not to say that the particular exercise of that authority here was constitutional or lawful. The Secretary cannot exercise his authority in a manner that would violate individual constitutional rights, such as the right to equal protection of the laws. Compare, e.g., Richardson v. Ramirez ,
E. The Equal Protection Claim
Plaintiffs' final claim - pressed only by NGO Plaintiffs - is that Defendants violated the Fifth Amendment by "act[ing] with discriminatory intent toward Latinos, Asian-Americans, Arab-Americans, and immigrant communities of color generally in adding the citizenship question to the Decennial Census." (NGO Compl. ¶ 195). To state a claim under the Fifth Amendment in the circumstances presented here, NGO Plaintiffs have to plausibly allege that Defendants' decision "was motivated by discriminatory animus and its application results in a discriminatory effect."
Thus, whether Plaintiffs state an equal protection claim turns on whether they plausibly allege a "racially discriminatory intent or purpose." Vill. of Arlington Heights v. Metro. Hous. Dev. Corp. ("Arlington Heights "),
In Arlington Heights , the Supreme Court identified a set of non-exhaustive factors for courts to consider in undertaking this "sensitive inquiry" into discriminatory intent. First, whether the impact of the action " 'bears more heavily on one race than another' may provide an important starting point." Arlington Heights ,
Considering those factors here, the Court concludes that NGO Plaintiffs' allegations are sufficient to survive Defendants' motion to dismiss. First, the Complaint pleads facts that show "[d]epartures from the normal procedural sequence." Arlington Heights ,
Second, various considerations -including the "specific sequence of events leading up to the challenged decision," Arlington Heights ,
To prove a violation of the Fifth Amendment, of course, NGO Plaintiffs need to prove that Defendants acted with a discriminatory purpose, and evidence that Secretary Ross's rationale was pretextual does not necessarily mean that it was a pretext for discrimination.
Finally, NGO Plaintiffs identify "contemporary statements" by alleged decisionmakers that lend further support to
It is true, as Defendants note, that none of those statements relate specifically to the decision to reinstate the citizenship question on the 2020 census. (Defs.' NGO Br. 18). But the law is clear that the mere "use of racial slurs, epithets, or other racially charged language ... can be evidence that official action was motivated by unlawful discriminatory purposes." Batalla Vidal v. Nielsen ,
Finally, Defendants' invocation of the Supreme Court's recent decision in Trump v. Hawaii , --- U.S. ----,
In sum, accepting NGO Plaintiffs' allegations as true and drawing all reasonable inferences in their favor - as is required at this stage of the litigation - the Court is compelled to conclude that they state a plausible claim that Defendants' decision to reintroduce the citizenship question on the 2020 census "was motivated by discriminatory animus and its application results in a discriminatory effect." Hayden I ,
CONCLUSION
For the reasons stated above, Defendants' motions to dismiss are GRANTED in part and DENIED in part. First , the Court rejects Defendants' attempts to insulate Secretary Ross's decision to reinstate a question about citizenship on the 2020 census from judicial review. Granted, courts must give proper deference to the Secretary, but that does not mean that they lack authority to entertain claims like those pressed here. To the contrary, courts have a critical role to play in reviewing the conduct of the political branches to ensure that the census is conducted in a manner consistent with the Constitution and applicable law. Second , the Court concludes that Plaintiffs' claims under the Enumeration Clause - which turn on whether Secretary Ross had the power to add a question about citizenship to the census and not on whether he exercised that power for impermissible reasons - must be dismissed. Third , assuming the truth of their allegations and drawing all reasonable inferences in their favor, the Court finds that NGO Plaintiffs plausibly allege that Secretary Ross's decision to reinstate the citizenship question was motivated at least in part by discriminatory animus and will result in a discriminatory effect. Accordingly, their equal protection claim under the Due Process Clause (and Plaintiffs' APA claims, which Defendants did not substantively challenge) may proceed.
None of that is to say that Plaintiffs will ultimately prevail in their challenge to Secretary Ross's decision to reinstate the citizenship question on the 2020 census. As noted, the Enumeration Clause and the Census Act grant him broad authority over the census, and Plaintiffs may not ultimately be able to prove that he exercised that authority in an unlawful manner. Put another way, the question at this stage of the proceedings is not whether the evidence supports Plaintiffs' claims, but rather whether Plaintiffs may proceed with discovery and, ultimately, to summary judgment or trial on their claims. The
Per the Court's Order entered on July 5, 2018 (Docket No. 199), the deadline for the completion of fact and expert discovery in these cases is October 12, 2018, and the parties shall appear for a pretrial conference on September 14, 2018. The parties are reminded that, no later than the Thursday prior to the pretrial conference, they are to file on ECF a joint letter addressing certain issues. (See id. at 2-3). In that letter, the parties should also give their views with respect to whether the case should resolved by way of summary judgment or trial and whether the two cases should be consolidated for either of those purposes.
The Clerk of Court is directed to terminate 18-CV-2921, Docket No. 154; and 18-CV-5025, Docket No. 38.
SO ORDERED.
Notes
Unless otherwise noted, docket references are to 18-CV-2921. Additionally, "Plaintiffs" refers to the plaintiffs in both cases, "Government Plaintiffs" refers to the plaintiffs in 18-CV-2921, and "NGO Plaintiffs" refer to the plaintiffs in 18-CV-5025.
On July 23, 2018, Plaintiffs in 18-CV-2921 filed a Second Amended Complaint, which adds the City of Phoenix as a plaintiff and includes allegations relating to Phoenix, but "otherwise does not substantively alter" the First Amended Complaint that Defendants had originally moved to dismiss. (Docket No. 210-1; see Docket No. 214 (refiling the Second Amended Complaint due to a filing error) ). By Order entered on July 24, 2018, the Court indicated that it would treat Defendants' previously filed motion to dismiss "as applying to the Second Amended Complaint." (Docket No. 213).
The Court may and does take judicial notice of undisputed historical facts. See Effie Film, LLC v. Pomerance ,
In between the 1900 and 1910 censuses, Congress created a permanent Census Office within the Department of Interior; the Census Office moved to the Department of Commerce and Labor the following year. See U.S. Census Bureau, Factfinder for the Nation: History and Organization 2 (2000), available at https://www.census.gov/history/pdf/cff4.pdf. When the Department of Commerce and Labor split into two departments in 1913, the Census Office - renamed the Census Bureau - was placed in the Department of Commerce.
A recipient of the ACS is required, under threat of fine, to respond - just as recipients of the census are. See
Given the volume of the Administrative Record, Defendants did not file it directly on the docket. Instead, they made it publicly available at http://www.osec.doc.gov/opog/FOIA/Documents/AR% 20-% 20FINAL% 20FILED% 20-% 20ALL% 20DOCS% 20% 5bCERTIFICATION-INDEX-DOCUMENTS% 5d% 206.8.18.pdf.
Defendants suggest that the "substantial risk" formulation applies only in food and drug cases (see Docket No. 190 ("Defs.' Reply Br."), at 4-5), but that suggestion is supported by neither logic nor law. Indeed, it is belied by both Clapper , in which the Supreme Court cited to non-food and drug cases, see
Defendants also complain that Government Plaintiffs "do not explain" how the states at issue might lose representation in Congress. (Defs.' Br. 18). At this stage, however, the Court "presum[es] that general allegations embrace those specific facts that are necessary to support the claim." Lujan ,
Defendants seize on the Carey Court's use of the word "showing," (Defs.' Br. 16), but it merely reflects the procedural posture of the case - namely, an appeal from the grant of a preliminary injunction. Plaintiffs here have made the requisite "showing" by way of the allegations in their Second Amended Complaint, which the Court must assume to be true.
Additionally, the standing inquiry in Clapper was "especially rigorous" because it involved the "review [of] actions of the political branches in the fields of intelligence gathering and foreign affairs."
With respect to the local government Plaintiffs who allege injury stemming from intrastate redistricting based on census data, Defendants note that "states are not required to use unadjusted census figures in such actions." (Defs.' Br. 21). The contention that this breaks the chain of causation for traceability purposes is foreclosed by U.S. House of Representatives , in which the Supreme Court held that the plaintiffs "established standing on the basis of the expected effects of the use of sampling in the 2000 census on intrastate redistricting."
For similar reasons, there is no merit to Defendants' contention that "it likely would be impossible to isolate and quantify the number of individuals who would have responded but for addition of the citizenship question." (Defs.' Br. 20). Given that Plaintiffs allege injuries stemming from the aggregate effect of adding the citizenship question, they do not need to identify who would have answered the census but for the inclusion of the citizenship question.
In support of that argument, Defendants cite United States v. Sanchez-Gomez , --- U.S. ----,
In addition to arguing that Plaintiffs lack Article III standing, Defendants contend that Plaintiffs lack "prudential standing" because their alleged injuries are not "within the zone of interests protected by the Constitution's Enumeration Clause." (Defs.' Br. 17). Whether a "plaintiff [comes] within the zone of interests for which [a] cause of action [is] available .... has nothing to do with whether there is a case or controversy under Article III." Steel Co. v. Citizens for a Better Env't ,
Admittedly, the Supreme Court did not explicitly address the political question doctrine in either Evans or Wisconsin . Nevertheless, there is authority for the proposition that the political question doctrine is a "jurisdictional limitation," Hourani v. Mirtchev ,
The plaintiffs in Carey included several individual voters who alleged that that their votes would be diluted "vis-a-vis those of other residents of the state."
The other five Justices in Franklin concluded that the action at issue did not constitute "final agency action." See
The Court departs from Justice Stevens's concurrence in one narrow respect, although it ultimately does not matter for purposes of this case. Assessing the legislative history of the 1976 statute amending the Census Act to include the language "in such form and content as he may determine," Justice Stevens concluded that "[t]he legislative history [of that statute] evidences no intention to expand the scope of the Secretary's discretion." Franklin ,
As Government Plaintiffs note, (Docket No. 182 ("Pls.' Br."), at 29), "the Census Bureau's own administrative guidance" may also provide a judicially manageable standard against which to measure the Secretary's actions. See Salazar ,
Data support this common-sense conclusion. In 2000, for instance, the mail-back response rate for the long-form questionnaire was 9.6% lower than the response rate for the short-form. See U.S. Census Bureau, Census 2000 Topic Report No. 11: Response Rates and Behavior Analysis 9 (2004), available at https://www.census.gov/pred/www/rpts/TR11.pdf.
Although the Equal Protection Clause of the Fourteenth Amendment applies only to the states, the Due Process Clause of the Fifth Amendment prohibits racial discrimination by the federal government as well. See, e.g., Weinberger v. Wiesenfeld ,
In sworn testimony shortly after his March 26, 2018 memorandum - of which the Court can also take judicial notice, see, e.g., Ault v. J.M. Smucker Co. , No. 13-CV-3409 (PAC),
Docket No. 212 is Defendants' notice of the filing of supplemental materials. Given the volume of those materials, Defendants did not file them directly on the docket, but made them available at http://www.osec.doc.gov/opog/FOIA/Documents/CensusProd001.zip.
While evidence of pretext alone does not suffice to prove a violation of the Fifth Amendment, it may well suffice to prove a violation of the APA - as Defendants themselves conceded at the initial conference in 18-CV-2921. (See Docket No. 150, at 15).
Citing much of the foregoing evidence of pretext, the Court previously ruled, in an oral opinion, that Plaintiffs were entitled to discovery on their claims under the APA. (See Oral Arg. Tr. at 76-89).
In light of that conclusion, the Court need not consider NGO Plaintiffs' alternative argument that the inclusion of the citizenship question "was motivated by a 'bare ... desire to harm a politically unpopular group,' and thus a violation of the equal protection clause even applying rational basis review." (NGO Pls.' Br. 25 (quoting Dep't of Agriculture v. Moreno ,