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Unraveling the Census Decision

Prof. Glenn Smith

Before Jan. 15, Commerce Secretary Wilbur Ross’ decision to have every 2020 Census respondent answer a question about citizenship (for the first time in 60 years) lived as either a story of bureaucratic and political intrigue or a high-profile case on the Supreme Court’s docket, writes California Western’s Professor Glenn Smith in a recent commentary published in Jurist.

The bureaucratic intrigue focus would have included a chain of events in which Secretary Ross decided early after his confirmation to add the question—skeptics would say, to cause an undercount of predominantly Democratic and minority voters.

With Judge Jesse Furman’s lengthy and methodical Jan. 15 judgment invalidating the Secretary’s citizenship question decision, it is Judge Furman’s final ruling that moves front and center.

The Census decision is an even more textbook example of why “administrative law” matters. In 26 pages of close and methodical analysis, Judge Furman found several independent reasons why the Administrative Procedure Act (APA) invalidates Secretary Ross’ decision.

Judge Furman’s decision is significant for four reasons.

First, it provides another striking example of how administrative law can empower challengers to push back on governmental policies they oppose.

Second, it underscores how the APA can provide an easier handle for judging when constitutional bases are problematic. Judge Furman rejected the claim that the Secretary’s decision violated the Equal Protection component of the Fifth Amendment by discriminating against “Latinos, Asian Americans, Arab Americans, and immigrant communities of color generally.” In so doing, the Judge underlined the difficulties inherent in constitutional equal protection arguments.

Third, it will make gratifying reading for any fan of meticulous judicial craftsmanship. With an obvious commitment to get at the truth and honor transparency and the rule of administrative legality, the Judge uses extensive discovery and navigates the intricacies of federal civil litigation to preside over an 8-day evidentiary trial that laid bare the flimsy pillars of Secretary Ross’ decision.

Fourth and finally, it is a case study in how lower courts and the Supreme Court interact.

As we stand by for further developments, notice how the actions of a subordinate court can influence the reactions of the Supreme Court and executive branch officials appearing before them.

Read Professor Smith’s complete Jurist commentary.