The D.C. Circuit published an interesting standing opinion last week: Citizens for Constitutional Integrity v. Census Bureau. In an opinion by Judge Wilkins, joined by Chief Judge Srinivasan and Judge Childs, the court aimed to clarify when to relax the Article III standing test for a procedural rights claim. “There is no established test in this Circuit for determining whether a claimed right is procedural or not,” the court noted before turning for guidance to how it has applied the APA’s procedural exception to notice-and-comment rulemaking.

Looking to the APA’s procedural exception to clarify Article III standing is not an obvious move, though perhaps understandable given the lack of guidance in standing jurisprudence. The key question, the court of appeals reasoned, is whether the claimant challenges agency action “‘from an operation[al] standpoint’” or based upon “‘substantive value judgment[s].’” An operational challenge creates a procedural-rights case. A claim requiring analysis of substantive value judgments does not. The former involves relaxed redressability and imminence requirements. The latter does not.

Citizens for Constitutional Integrity was not a procedural-rights case, or so the court held. The plaintiff sued the Census Bureau, the Department of Commerce, and the heads thereof, to enforce the Reduction Clause of the Fourteenth Amendment, which “provides that the ‘basis of representation’ for the apportionment of representatives to any state ‘shall be reduced’ proportionately ‘when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged.’” The Reduction Clause’s purpose was to discourage southern states from disenfranchising Black voters, as Judge Wilkins, who wrote for the panel and separately concurred, explained. The plaintiffs alleged that the Bureau ignored the Reduction Clause when calculating apportionments after the 2020 census and thus diluted the voting power of citizens in New York, Pennsylvania, and Virginia. The D.C. Circuit held that this challenge was substantive because it went “after the Bureau’s alleged failure to take certain substantive considerations into account when conducting the analysis for the Report.” Because the challenge was substantive, the normal Article III traceability requirement applied, and the plaintiffs had not met that requirement because their expert declaration did not provide a plausible basis for concluding that New York, Pennsylvania, and Virginia “were entitled to any more seats than the Report assigned them.”

Judge Wilkins’s concurring opinion sketched the Reduction Clause’s history—a history of nonenforcement. The Bureau was shirking the executive branch’s constitutional responsibilities:

The Reduction Clause, which has been codified in statute since 1872, is just as important as any other constitutional provision, having been based following intense deliberations about how to reunite a nation fractured by way and facing political differences that threatened to leave four million formerly enslaved Black Americans with ‘no political existence’ while Southerners gained a profound increase in political power. W.E.B. Du Bois, Black Reconstruction 290 (Free Press 1998) (1935); see id. at 295, 330. Equal treatment must be afforded not just to people but to the laws in place to protect their rights; it is high time, after 150 years, that the Reduction Clause receive the respect it deserves.