Today the Supreme Court decided Department of Commerce v. New York, which was the challenge to Commerce Secretary Ross’s decision to include a citizenship question on the 2020 census questionnaire. The Court, in a 5-4 decision, ultimately agrees with the district court that Secretary Ross’s reason for his decision was pretextual and thus a remand to the agency for reconsideration would be appropriate.

Chief Justice Roberts penned the principal opinion in the case, which upheld at least some plaintiffs’ standing to bring the lawsuit, the availability of judicial review under the Administrative Procedure Act, and Secretary Ross’s constitutional and statutory authority to include the citizenship question. Roberts, writing for a majority of the Court, also found that the administrative record supported Secretary Ross’s decision, just not his reasoning (more on that below).

I’ll leave it to others to explore the implications of those various holdings. In this post, I want to focus on Part V of Roberts’s opinion, which part was joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan. Although these are “unusual circumstances” as Roberts notes, I suspect the novel administrative law principle announced in Part V will be relied on and quoted by litigants challenging administrative actions for decades to come. I’ll go ahead and coin it “harder look” review under the APA.

In Part V, Roberts agrees with the district court’s ruling that Secretary Ross’s “decision must be set aside because it rested on a pretextual basis, which the Government conceded below would warrant a remand to the agency.” As Roberts explains, blackletter administrative law requires that an agency must disclose the basis of its action and that judicial review of such action must generally be limited to that administrative record. “That principle,” Roberts explains, “reflects the recognition that further judicial inquiry into ‘executive motivation’ represents ‘a substantial intrusion’ into the workings of another branch of Government and should normally be avoided.”

Administrative law, moreover, dictates that “a court may not reject an agency’s stated reasons for acting simply because the agency might also have had other unstated reasons,” and that a court should not reject administrative decisions because they are influenced by political or policy considerations. “Such decisions,” Roberts explains “are routinely informed by unstated considerations of politics, the legislative process, public relations, interest group relations, foreign relations, and national security concerns (among others).”

Importantly, however, administrative law recognizes “a narrow exception to the general rule against inquiring into ‘the mental processes of administrative decisionmakers.'” We find that exception, Roberts explains, articulated in the Supreme Court’s 1971 decision in Citizens to Preserve Overton Park v. Volpe: when there is a “strong showing of bad faith or improper behavior.”

Based on the expanded record in this case, the Court agrees with the district court that Secretary Ross’s reasoning was pretextual. Roberts concludes:

Altogether, the evidence tells a story that does not match the explanation the Secretary gave for his decision. In the Secretary’s telling, Commerce was simply acting on a routine data request from another agency. Yet the materials before us indicate that Commerce went to great lengths to elicit the request from DOJ (or any other willing agency). And unlike a typical case in which an agency may have both stated and unstated reasons for a decision, here the VRA enforcement rationale — the sole stated reason — seems to have been contrived.

What emerges from this analysis, to my eye, is not the “narrow exception” contemplated in Overton Park, but a roadmap for a much more searching inquiry into the “genuine justifications for important [agency] decisions.” This is definitely not “thin rationality review.” And it strikes me as more searching than State Farm “hard look” review, which commands courts to set aside agency action as arbitrary and capricious under the APA “if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.”

To be sure, although he does not cite State Farm in Part V, Roberts’s opinion at times sounds like hard look review, finding, for example, a “disconnect between the decision made and the explanation given.” But it also seems to go beyond hard look review by not just examining the reasons stated but also inquiring into whether those reasons are “genuine,” as opposed to “more of a distraction.”* In particular, I anticipate the following language from the opinion to be quoted by litigants challenging administrative actions for decades to come:

The reasoned explanation requirement of administrative law, after all, is meant to ensure that agencies offer genuine justifications for important decisions, reasons that can be scrutinized by courts and the interested public. Accepting contrived reasons would defeat the purpose of the enterprise. If judicial review is to be more than an empty ritual, it must demand something better than the explanation offered for the action taken in this case.

Justice Thomas’s separate opinion, joined by Justices Gorsuch and Kavanaugh, seems to agree this is a harder look doctrine:

The Court’s holding reflects an unprecedented departure from our deferential review of discretionary agency decisions. And, if taken seriously as a rule of decision, this holding would transform administrative law. It is not difficult for political opponents of executive actions to generate controversy with accusations of pretext, deceit, and illicit motives. Significant policy decisions are regularly criticized as products of partisan influence, interest group pressure, corruption, and animus. Crediting these accusations on evidence as thin as the evidence here could lead judicial review of administrative proceedings to devolve into an endless morass of discovery and policy disputes not contemplated by the Administrative Procedure Act (APA).

Indeed, in Part III of his opinion, Thomas similarly concludes that “[o]pponents of future executive actions can be expected to make full use of the Court’s new approach” and will “have strong incentives to craft narratives that would derail them.”  In an extraordinary move, Thomas even provides an example where this doctrine could make a difference: the FCC’s 2015 net-neutrality regulation.

Perhaps Thomas’s hope is realized that Roberts’s approach in the census case “comes to be understood as an aberration — a ticket good for this day and this train only.” But if State Farm hard look review and the major questions doctrine are indicative, I bet litigants will utilize today’s decision to push for an even harder look into administrative actions for years to come.

* 6/28/2019 Quick Update/Clarification: This post focused on Part V of Roberts’s opinion concerning a harder-look, State Farm-infused version of the Overton Park inquiry into agency reasongiving. But as one reader astutely notes, Part IV.B of the opinion, in which Roberts finds that the Secretary’s decision “was supported by the evidence” under APA arbitrary-and-capricious review, seems to depart from State Farm hard look review and embrace some version of Gersen/Vermeule thin rationality review. Among other things, as Asher Steinberg flags, Roberts cites Baltimore Gas & Electric Co. v. NRDC and emphasizes how “the choice between reasonable policy alternatives in the face of uncertainty was the Secretary’s to make” and the importance of “[w]eighing that uncertainty against the value of obtaining more complete and accurate citizenship data.”

Compare Roberts’s analysis in Part IV.B with the Gersen/Vermeule approach, for example (footnote omitted):

As far as the law in action is concerned, we live in the era of Baltimore Gas review. Baltimore Gas made clear (1) that it is generally sufficient that an agency states the nature of its uncertainty—not that it resolve it; (2) that agencies are entitled to adopt any rational assumptions to cope with uncertainty, including highly optimistic assumptions, which are just as rational as highly pessimistic ones; and (3) that courts may not demand the impossible by requiring agencies to explain why they have chosen the assumptions they have, as opposed to other assumptions. Baltimore Gas review is in fact more consistent with Supreme Court practice in the past three decades than is State Farm (at least in its inflated form, as hard look review).

As Steinberg argues, Roberts likely only gets to Part V because the agency did not challenge the inclusion of extra-record materials. Roberts definitely flags “these unusual circumstances” and suggests there would be no evidence of pretext but for the agency’s stipulation “to the inclusion of more than 12,000 pages of internal deliberative materials as part of the administrative record.” So maybe thin rationality review is Roberts’s general approach, unless the reviewing court determines the reasons offered are not “genuine” but instead “contrived” or otherwise advanced in bad faith. Or, as another reader put it offline, “It’s quite fascinating to see the subtle (and perhaps not entirely convincing) distinction being drawn in the opinion between application of conventional APA arbitrary and capricious review to the Secretary’s decision based on available information (on the one hand), and the harder-look review deemed appropriate for situations where there’s more than a whiff of possible bad faith (on the other).”