This is my third post of four posts regarding Secretary of Commerce Wilbur Ross’ March 26, 2018 decision to add a citizenship question to the 2020 decennial census form.  The first post (here) discussed the disposition of the government’s motion to dismiss two suits challenging the decision.  The second post (here) took Secretary Ross’ reasons statement at face value and showed its vulnerability to an APA section 706(a)(2)(A) “arbitrary and capricious” challenge.

This post pursues the hypothesis that Secretary Ross sought to minimize undocumented aliens’ impact on the apportionment of Congress, the distribution of votes in the Electoral College, and reapportionment within the states (as well as, perhaps, the distribution of grants-in-aid to various jurisdictions).  Such a goal fits perfectly with the Trump Administration’s hostility to undocumented aliens.  If Secretary Ross believes that undocumented aliens should not count, adding a citizenship question at the risk of increasing undocumented aliens’ non-response rate is ideal.  He need have no concern that undocumented aliens will fail to respond to the census form, because such individuals’ failure to respond does not appear to affect the enumeration of American citizens in each state.  On the other hand, such a decision undermines Secretary Ross’ expressed goal, including undocumented aliens for most purposes but permitting the Department of Justice (“DOJ”) to abstract them out in a specialized set of circumstances related to Voting Rights Act section 2 enforcement.

So can Secretary Ross’s decision be upheld as a means to limit the impact undocumented aliens have on apportionment?  That is, can his decision be upheld as a means for facilitating broad use of citizen voting age population (“CVAP”) to apportion the House of Representatives and various state and local legislative bodies? There are three problems with doing so, even assuming arguendo that the Secretary’s embrace of the policy is unrelated to partisan and racially invidious motivations (a topic to which I will turn in my fourth post).

Failure to Assert a Decision’s “True” Rationale

The Secretary does not assert any interest in facilitating the use of CVAP generally for apportionment in his decision.  Neither does the Department of Justice in its “request” to add the question.  (Indeed, neither DOJ nor Secretary Ross suggest that the request or the decision to include the citizenship question have anything to do with apportionment of congressional representation and Electoral College votes among the states.)  As a practical matter, the Chenery doctrine, SEC v. Chenery Corp., 318 U.S. 80 (1943), would make it difficult to uphold a decision for an unstated reason, even if one could reasonably infer that reason from the decision’s political context.

Under the Chenery principle, a reviewing court can uphold an agency decision only on the basis the agency states for its decision.  Id. at 95; Kevin M. Stack, The Constitutional Foundations of Chenery, 116 YALE L.J. 952, 960-61, 964-65, 972-73 (2007).  Post hoc rationalizations cannot provide a basis for upholding agency action.  Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 419 (1971); Stack, supra, 116 YALE L.J. at 958.  If the reasons statement provided by the agency does not raise a particular policy justification, it is not clear how that policy basis, much less the reasons leading from that policy basis to the agency’s decision, can become a part of the administrative record.

However, there is a more compelling reason that decisions based on pretext cannot be upheld on the basis of an agency head’s true, though unstated, rationale.  An agency head should be required to reveal the true policy basis for his decision, rather than a more palatable one chosen for political expedience.  I have made the argument, albeit primarily in the legislative context, that reason giving is an implicit governmental obligation, both given popular sovereignty and basic notions of fairness to individuals.  Bernard W. Bell, Legislative History Without Legislative Intent: The Public Justification Approach to Statutory Interpretation, 60 OHIO ST. L.J. 1, 9-20 (1999).  Indeed, I argued that the “public justification” for a statute is the only aspect of the legislative history that should be considered in interpreting a statute.  Id. at 83.  Kevin Stack has grounded a reason-giving requirement in the non-delegation doctrine, considering it a corollary to the non-delegation doctrine.  Stack, supra, 116 YALE L.J. at 989.   Indeed, it is impossible to know how the agency would have reasoned through the problem based on an unstated policy premise if the agency has not addressed the matter.  See Chenery, 318 U.S. at 94 (“the orderly functioning of the process of [judicial] review requires that the grounds upon which the administrative agency acted by [sic] clearly disclosed”).  Such obfuscation also makes it difficult for commenters to address the agency’s real concerns.

Moreover, providing a false reason is even more illegitimate, and thus more unworthy of respect.  Providing false reasons runs counter to the commitment Congress made in enacting the Freedom of Information Act, that citizen should know what their government is up to.  U.S. Department of Justice v. Reporters Committee for Freedom of Press, 489 U.S. 749, 772, 780 (1989); accord, National Archives and Records Administration v. Favish, 541 U.S. 157, 171 (2004).  I make an argument for the right not to be misled, albeit, again, largely in the legislative context, in Legislative History Without Legislative Intent, supra, 60 OHIO ST. L.J. at 20-23.

The Secretary’s Authority to Make Decision Regarding Theories of Representation

Even if Secretary Ross had been willing to publicly acknowledge a goal of minimizing the impact of undocumented aliens on the distribution of elected representatives and electoral votes, there would be a second problem with upholding his decision on that basis.  In particular, the theory of representation is such a profound question, for our national and state governments, that its resolution should be viewed as falling outside the Secretary of Commerce’s delegated powers.

The theory of representation lies at the heart of our democracy.  For instance, in Burns v. Richardson, 384 U.S. 73, 93 (1966), the Court observed

Neither in Reynolds v. Sims nor in any other decision has this Court suggested that the States are required to include aliens, transients, short-term or temporary residents, or persons denied the vote for conviction of crime in the apportionment base by which their legislators are distributed and against which compliance with the Equal Protection Clause is to be measured. The decision to include or exclude any such group involves choices about the nature of representation with which we have been shown no constitutionally founded reason to interfere.

With respect to apportionment of representation among the states on the federal level, the Enumeration Clause itself suggests that the census must be based on residence, not on eligibility to vote.   While “Indians not taxed” were excluded from the enumeration and enslaved African-Americans were counted as three-fifths, all other “Free persons” were to be counted.  U.S. Const. art I, §2, cl. 3.  In Evenwel v. Abbott, — U.S. —, 136 S. Ct. 1120 (2016), the Court noted that the Fifteenth Amendment one-person-one-vote cases had generally assumed that population was the basis of apportionment. Id. at 1131.  And the Court explained the rationale for districting by population rather than voters:

As the Framers of the Constitution and the Fourteenth Amendment comprehended, representatives serve all residents, not just those eligible or registered to vote.  Nonvoters have an important stake in many policy debates—children, their parents, even their grandparents, for example, have a stake in a strong public-education system—and in receiving constituent services, such as help navigating public-benefits bureaucracies. By ensuring that each representative is subject to requests and suggestions from the same number of constituents, total-population apportionment promotes equitable and effective representation. 

Id. at 1132.  Evenwel rejected the argument that CVAP was the sole constitutionally-mandated basis for apportionment.  It held that states and localities can apportion based on population, id. at 1123; indeed, the Court left open the question of whether a state could use CVAP, id. at 1133.  The Court noted that “[a]dopting voter-eligible apportionment as constitutional command would upset a well-functioning approach to districting that all 50 States and countless local jurisdictions have followed for decades, even centuries.” Id. at 1132.  Granted, Evenwel defended the theory of virtual representation with respect to American citizens who lack the right to vote.  Justifying virtual representation for those illegally present in the United States is more difficult, and Evenwel does not present such an argument.

Assume arguendo that the federal government, in the exercise of its plenary authority over aliens and its power to apportion the states, could apportion representatives among the states based on the distribution of American citizens, rather than total population.  Title 13 confers broad authority on the Secretary of Commerce with regard to the census, see, 13 U.S.C. §§ 4, 5, 141.  Nevertheless, a decision to apportion the House of Representatives based on CVAP should be made by Congress and the President through legislation, not by the Secretary of Commerce in of specifying the content of the census questionnaire.  Several precedents provide some support such a proposition.

In the Court’s latest delegation case, Whitman v. American Trucking Assns., 531 U.S. 457 (2001), the Court noted that “the degree of agency discretion that is acceptable varies according to the scope of the power congressionally conferred,” id. at 475.  That suggests that a delegation to determine such a profound question as the theory of representation might violate the delegation doctrine.   At a minimum, it suggests that the courts should avoid construing the broad general delegation of power to the Secretary in the provisions cited above to encompass deciding the theory of representation by collecting information in a way that effectively decides that CVAP will be the only means by which representation can be apportioned.

In FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120 (2000), the Court held that the FDA could not interpret its organic statute to confer upon it jurisdiction over tobacco products.  The Court withheld Chevron deference given Congressional attention to the subject of tobacco regulation over a period of years, which was reflected in the “unique political history” of tobacco legislation.  Id. at 159-60.  The Court observed: “In extraordinary cases, however, there may be reason to hesitate before concluding that Congress has intended . . .  an implicit delegation [to fill in statutory gaps].”  Id. at 159.  This has given rise to the “major cases” corollary to the Chevron doctrine.  See King v. Burwell, — U.S. —, 135 S. Ct. 2480, 2488-89 (2015); see generally, Nathan Richardson, Keeping Big Cases From Making Bad Law: The Resurgent “Major Questions” Doctrine, 49 CONN. L. REV. 355 (2016).

Decisions on the census and apportionment of Congress have a “unique history,” and the principle of apportionment based on a count of the entire population has long been established.  Indeed, section 141 directs the Secretary shall provide to the relevant congressional committees the subjects to be covered and the specific questions to be asked well before the census is to commence, hardly a sign that Congress intended to confer upon the Secretary discretion to alter the theory of representation used in apportionment.  There is a long history of congressional consideration of this issue and legislation is regularly introduced on the subject. See, Congressional Research Service, Constitutionality of Excluding Aliens from the Census for Apportionment and Redistricting Purposes (April 13, 2012)(reporting on discussions of the issue in the 1920’s, the 1970’s and the 1980’s, as well as in the 111^th Congress (January 2009-January 2011)); see, e.g., The Census Accuracy Act, H.R. 3600, 115^th Cong., 1^st Sess. (proposed)(requiring the census form to allow respondents to indicate citizenship or lawful presence in the United States).

An older case, involving the government’s exercise of its power over aliens merits note.  In Hampton v. Mow Sun Wong, 426 U.S. 88 (1976), plaintiff challenged a 93-year-old Civil Service Commission rule that barred non-citizens from civil service positions.  Id. at 90.  The Commission argued that the bar served three purposes: (1) providing the President a bargaining chip in treaty negotiations, (2) encouraging aliens to pursue naturalization, and (3) having an easily-administrable prophylactic rule that would ensure non-citizens would not hold sensitive positions. Id. at 103-04.  The Court, assuming without deciding that the federal government could exclude non-citizens on such a basis, concluded that the Commission itself could not do so.  Id. at 105.  It explained that due process required that such restrictions on the liberty of aliens legally admitted into the country be imposed by Congress and the President, or that at least the Commission ground its decision on policy considerations “that are properly the concern of that agency.”  Id. at 116-17.  Granted Mow Sun Wong reflects an outmoded view of “due process” and Presidential control over agency decision-making.  And, unlike the Commission, the Secretary of Commerce is not an “independent agency.”

None of the above cases is dispositive, and indeed they may be, at best, only suggestive.  But if apportionment on the federal level is to be done other than by population, Congress, not the Secretary of Commerce, should make that decision (at least in the absence of a clearer, more specific delegation).  Congress’ hands should not be tied by a decision to include a citizenship question which might make an accurate count of the distribution of the population impossible.  On that theory, the Secretary’s decision cannot be sustained.

Secretary Ross’ decision also has federalism implications.  Adding a citizenship question that leads to an undercount of the population will frustrate each state’s discretion to choose to apportion based on population rather than citizenship or citizen voting age population (“CVAP”).  As noted above, states and localities are free to use total population, Evenwel, 136 S.Ct. at 1123.  However, if the Census fails to accurately count population, that choice will be undermined, yet another reason the decision to add the citizenship question should be made by Congress and the President, not a cabinet secretary.

Undercounting American Citizens

There is yet a third problem with upholding the Secretary’s decision based on the “true” reason for the decision I have posited.  Even viewed as a decision to provide a basis for the broader use of CVAP for apportionment (or other purposes more broadly), the Secretary’s decision may be vulnerable to challenge under the section 706(a)(2)(A) “arbitrary and capricious” standard of review.  Use of CVAP certainly requires an accurate count of all American citizens.  The Secretary’s decision raises two problems in this regard, problems which the Secretary seems not to have considered.   

First, some American citizens live in households that include undocumented aliens.  Undocumented alien parents may not respond to the census in terms of their American-born children.  American citizens married to undocumented aliens may not respond for fear of exposing their undocumented alien spouses to potential deportation.  Thus, undocumented aliens’ non-responses could lead to an undercount of affiliated American citizens.  See, Letter of Senator Diane Feinstein, et al. to Wilbur Ross dated January 5, 2018 at 1-2 (Administrative Record (“Adm. Rec.”) at 780-81).)

Second, the Secretary does not consider the broad consensus among a majority of the populace (albeit a consensus that may well not include the President and key players in his Administration) that many undocumented aliens are deserving of an opportunity to remain in the country and to a path to citizenship. America’s Voice, Press Release, Quinnipiac Poll: Americans Want Dreamers Protected; Think Trump and GOP Want Dreamers Deported (Feb. 21, 2018).  In that sense, Dreamers’ position may not significantly differ from that of lawful permanent residents, who are counted for census purposes.  Given the Administration’s enforcement efforts, many Dreamers may be wary of completing census forms.

Previewing the Concluding Post in this Series

My last post in this series will address the New York Immigration Coalition plaintiffs’ challenges to Secretary Ross’ motives, namely that the decision was motivated by an invidious intent to harm certain communities of color.  In that post I will address two questions: (1) will Secretary Ross need to testify as to his motives, and (2) if the court concludes that Secretary Ross’ motivation to undercount undocumented aliens was partisan, and not racial/ethnic, should that motive be sufficient to invalidate his decision?