DOJ Filing Emergency Petition on Census Citizenship Question

Criminal Law Practice Group

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The inclusion of the citizenship question on the 2020 census remains both uncertain and controversial.  On January 15, Judge Jesse M. Furman of the United States District Court in Manhattan issued an opinion blocking the Commerce Department from including a citizenship question.  The opinion states that Secretary Ross violated the Administrative Procedure Act (APA) in various ways, including making an “arbitrary” and “capricious” decision to include the citizenship question. The opinion also posits that Secretary Ross violated the APA by failing to justify departures from past policies and practices, and failing to notify Congress of census subjects three years in advance.  Judge Furman further believed that Secretary Ross' reasoning for including the citizenship question was "pretextual."  However, he did not find that the plaintiffs carried their burden of proof showing that Ross' decision was pretext for impermissible discrimination.

Solicitor General Noel Francisco said on January 22 that the Department of Justice plans to file a petition for writ of certiorari before judgment with a proposal for expedited briefing to allow for oral argument and decision by the end of June, so the census questions can be printed on time.  Francisco believes the issue is of such "imperative public importance" that it justifies altering the normal procedure of the Supreme Court to wait until the federal appeals court has had a chance to opine on the case. John Baker joins us to discuss the Solicitor General’s petition, and the likely future of the citizenship question.


Dr. John S. Baker, Jr., Visiting Professor, Georgetown Law




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Event Transcript

Operator:  Welcome to The Federalist Society's Practice Group Podcast. The following podcast, hosted by The Federalist Society's Criminal Law Practice Group, was recorded on Friday, January 25, 2019, during a live teleforum conference call held exclusively for Federalist Society members.          


Micah Wallen:  Welcome to The Federalist Society's teleforum conference call. This afternoon's topic is the "DOJ Filing an Emergency Petition on the Census Citizenship Question." My name is Micah Wallen, and I am the Assistant Director of Practice Groups at The Federalist Society.


As always, please note that all expressions of opinion are those of the expert on today's call.


Today we are fortunate to have with us Dr. John Baker, who is a Professor Emeritus at Louisiana State University Law School and is a Visiting Professor for Georgetown University Law School. After our speaker gives his remarks, we will go to audience Q&A. Thank you for sharing with us today. John, the floor is yours.


Dr. John S. Baker, Jr:  Thank you, Micah. The first thing I want to say is that nothing I say is representative of the opinions or anything else of either of the law schools mentioned. This is my second time on a teleforum call discussing this litigation over the citizenship question that has been proposed for the 2020 census. On January 15th, a New York district court ordered the removal of the citizenship question. Today, it is expected that the Department of Justice, the Solicitor General's Office, will file a petition in the Supreme Court seeking certiorari before judgement; that is, asking the court to take the case, given just the district court judgement, and skipping review in the Second Circuit. That's the emergency nature of this. This is not done that often. Why is the Justice Department doing this? Simply because unless a decision overturning the district court ruling comes out by the end of June, it will be too late to add the question to the 2020 census.


Before I get into the details of this, I want to note something at the outset to put this in perspective. Democrats and civil rights groups have long argued the need for a citizenship question on what is called the American Community Survey. That is a longer form which replaced the so-called long form before, and that question has been important in voting rights litigation. In the course of preparing for the 2020 census, the Department of Commerce, as explained in a memo issued by Secretary Ross, the Department of Commerce discovered that there were inaccuracies in the responses to the American Community Survey; that is, some people either stated incorrectly, or mistaken in some way, or possibly lied as to whether they were or were not American citizens.


What the Secretary has done in adding the question to the 2020 census is to seek additional information. But you may say, "Well, if people were mistaken or lied on the ACS, why would we get any better data by adding the question?" Well, it turns out that the Census Bureau is allowed to consult other administrative records. And it was, in fact, in the course of consulting those other records that they realized that the data from the ACS was wrong because they can verify a lot in terms of the administrative record as to the accuracy of certain responses. But now, we have a district court judge in New York ordering the removal of this question.


So I will cover three points. So first of all, I want to review the timeline of what's happened since the Secretary announced his decision to include the question; two, go to the basic elements, pieces of the district court decision; and then three, come back to what is really at stake. So on the first point, on March 26 of 2018, as required by statute, Secretary Ross reported his questions to the Congress, and he included that he would be asking the citizenship question. This question is the same question that has been asked on the American Community Survey. Indeed, a question on citizenship has been asked since 1820 on all but one of the censuses, either on the long form or on the short form. So the question is not a new question at all.


Nevertheless, on the very same day that Secretary Ross announced that he was going to ask the question and did so in the course of a lengthy memo, the first case was filed against the Secretary in California. All told, there have been six cases filed. The one in New York is the one that is going up to the Supreme Court right now, that is New York v. Ross. But there were also -- an additional case in California, and those two cases were consolidated for trial and the Court has just finished taking evidence in that case. Two other cases were filed in Maryland, one of them by former U.S. Attorney General Holder, and those two cases are in trial still, one to two days more of trial. As to the New York case, this case not only included New York, it included California and a number of other states, cities, counties, and non-profit organizations, at least 184 non-profit organizations represented by an umbrella organization.


Time-wise, what happened and what really got some attention was a July 3rd ruling by the district court in New York saying that the plaintiffs had demonstrated, quote, "a strong showing of bad faith on the part of the Secretary." On September 21st, the district court ordered Ross to be deposed. In the meantime, there was a temporary stay by Justice Ginsburg, and then the Court itself did stay the deposition of Secretary Ross but otherwise let discovery go forward. But interestingly, although seven of the nine were that opinion, there was a separate opinion by Justice Gorsuch with whom Justice Thomas joined, concurring in part and dissenting in part.


The last time I did this teleforum, I mentioned that there was this somewhat of a split, but what's really interesting is that Justice Gorsuch was very prophetic. After indicating that really, we ought to dispose of this matter now, it's gone well beyond where it should, he noted, "But until now, at least, this much has never been thought," -- that is, the showing -- "never been thought enough to justify a claim of bad faith and launch an inquisition into a cabinet secretary's motives." Unsurprisingly, the government tells us that it intends to file a petition seeking review. He would just short circuit it at this point. He says, "Today, the Court signals that it is likely to grant the government's petition, and the Court expressly invites the government to seek review of all the district court's orders allowing extra record discovery."


All of that I referred to the last time, but I didn't refer so much to his prediction. He said, "One would expect that the Court's order today would prompt the district court to postpone the scheduled trial and await further guidance. After all, that is what normally happens when we grant certiorari or indicate that we are likely to do so in a case where the trial is imminent. But because today's order technically leaves plaintiffs able to pursue much of the extra record discovery they seek, it's conceivable they might withdraw their request to depose Secretary Ross," which they did, "try to persuade the Court to proceed quickly to trial on the basis of the remaining extra record evidence," and that is what happened, "and then oppose certiorari on the ground that their discovery dispute has become moot," which they have.


So that's where we are. Had the other Justices, or at least two others on the Court agreed with that position, the matter would have ended a long time ago. Nevertheless, we are now in a crisis situation because that didn't happen. And as I said on January 15th, the Court, after bench trial in November on two dates, issues this order directing the Secretary not to ask the question.


Now, in his decision are basically four grounds. He claims that, first of all, the Secretary did not comply with a statutory requirement that he notify Congress as to the, quote, "subjects of the census questions." And, in fact, the Congress was notified of the general subject of citizenship. It was not until the end of March this year, two years in advance, that the Secretary was required to actually deliver those questions. There's a difference between the subject and the question itself. It seems pretty clear that the judge is simply mistaken on this.


He mentions that everything has to be -- new questions have to be based on the administrative record. Well, in fact, there is a lengthy discussion of all that the Secretary had gone through by way of investigation. He went through the possible options that were given to him by the staff. He found that part of that was adequate, but part of it was not. He took some of the staff suggestion, and he combined it with his own insistence on the question itself.


Three, the Court decided that this was a pretext, that the Secretary really was not issuing this question or adding this question because of the Voting Rights Act. The judge said he couldn't say that it was with a discriminatory motive because, after all, the plaintiffs had not had the opportunity to question the Secretary, but had they done so, they might have found that motive.


And four, he goes through reasons why he thinks the Secretary's reasons are wrong. One is that he disregarded his own experts. Well, that's what political appointees are all about, and it is clear that this judge, very much a supremacist judge, thinks that the administrative state does much better than do elected officials.


My third point has to do with what is at stake. If you read the Secretary's memo from March 26th where he talks about the discovery of the inadequacies of the data, what you find out is that the number we've often heard as to 11 million illegals in the country was itself an estimate by the Census Bureau back in 2012. And they used a narrow figure for mistakes, etc., and they calculated 11 million. But based on use of the administrative records, Commerce Department was able to discover that this was grossly inaccurate, that the figure of mistakes or errors was much higher. And as a result, it may be that as many as 25 million illegals are, in fact, in the country. Now this might seem surprising to many, but in fact, not long after that, independently, a study at Yale University came up with a figure: 22 million illegals in the country.


Now what's involved here? We know that what's involved is a great deal of power and money at stake. The main states are California, Texas, and Florida. But California has declared itself a sanctuary state. Neither Texas nor Florida have done that. If you look at the population figures, California's losing a lot of citizens leaving, but somehow the birthrate and the illegals are propelling it forward. We really have a question of transparency here. Where is political power being based? To what extent is California, in particular, relying on illegals in order to prop up their political power?


It may well be that California has 14 or more seats in the U.S. House, and therefore 14 or more additional electoral votes due to the fact that it has so many illegals. If you do the math, 11 million illegals divided by the number per district at the last census, which was about 750,000, if you put them all in individual districts together, that's 15 seats. If the number is 25 million, it's 33 seats. That amount of political power explains a lot of what is going on in this country regarding the immigration question. That is why it's so critical that the Supreme Court take this, although emergency matter, especially in light of the emergency attitude that the district court took in going forward with the case. Remember, everyone's going to be counted. The question is whether they are going to be identified as citizens or not. If the Court doesn't take this case, there is no other remedy. Thank you.


Micah Wallen:  Thank you, professor, for those remarks. We will now go to audience Q&A. We will now go to our first question.


Ken Klukowski:  Hi, John. This is Ken Klukowski. You said that citizenship had been asked on every census except one. Which was the census where it was not asked?


Dr. John S. Baker, Jr:  First of all, we have to clarify this. I mentioned before the switch from the long form to the ACS, it was sometimes only asked on the long form and not on the shorter form. But the switch came in 2010, I believe, when we had the ACS asking the question, but the ACS was not, at that point, simultaneous with the census itself. So for other years up until 1950, '50 was the last year it was asked -- or the most recent year in which it was asked on the main census. And then it switched to being on the long form, and then when the long form dropped out, it switched over to the ACS, but there was a gap in there.


Micah Wallen:  Dr. Baker, is there anything that you mentioned that you'd like to expound on while we wait for the next question?


Dr. John S. Baker, Jr:  Well, actually, it's just that the timing is critical at this point as far as what happens in this litigation, that it's just astounding that had a democrat done this, there would be no problem. But even though the district court recognized that it's extraordinary to go beyond the record and to allow discovery on these matters, the judge has bent over backwards to make it possible to challenge this action.


Micah Wallen:  And we now have a couple questions lined up, so without further ado, we'll go to our next question.


Caller 2:  Good afternoon, Doctor. Could you please address the issue of standing in this case and why the plaintiffs have standing in this matter?


Dr. John S. Baker, Jr:  The district court did address the issue of standing. I've not paid any attention to it in this situation as to standing. There are a couple of arguments, one of which, I think, is the greatest reason for standing by the states, but I would have said there was a ripeness question, not a standing question. Two of the states, New York and Illinois, are projected possibly to lose representation. I was involved in litigation at the time of the last census where we in Louisiana lost a seat, and the difficulty was figuring out, although we had census, when did we have ripeness? I would say the issue for the states would not have been ripe. That was one issue in part.


The other is that some of the organizations were claiming loss of money. Well, the census has a constitutional purpose, on top of which Congress has tied it to money issues. As always, the most bitterly fought issues are over money and power. This case has both money and power involved. The cities are desperate, always, to crank up their numbers, and contrary, the notion that somehow the census is apolitical. If you look at it, different lobby groups have hit the Census Bureau over the years to try to get them to bend this way or that way. So there's a lot of money at stake, and cities, in particular, want to make sure that they get everyone in the city counted. So at the time of the last census, what they did was argue that prisoners taken from their city and put in a state prison in some other city should actually be counted back in the city where they committed the crime. It's those kinds of things that are fought over that never make the media that involve money issues.


And again, the question is is that a constitutional question? The argument is that by asking the question, there will be a lower turnout of people responding. Almost every census, that claim is made. I have an article from the 2010 -- a USA Today article in which it talks about people claiming there will be an undercount. They're always claiming there will be an undercount. George Washington was the first person to claim there had been an undercount. You're never going to get a perfect count, but that is in the administration of it. The question of whether you allow the question is totally separate. But I agree with you, there are standing issues in the middle of this, but you'd have to read the standing sections of that opinion to see what the judge's rationale was.


Micah Wallen:  We will now go to our next question.


Dave Baker:  Professor Baker, this is Dave Baker in Atlanta. Is the premise, then, or the presumption that every head counted is a citizen unless shown otherwise? Or just given the overwhelming incontrovertible evidence of the presence of illegal aliens in the country, and more specifically, you can assign numbers to states like California. Can we turn this around? In other words, there needs to be some showing that a person is a citizen, a requirement for the citizen question on the census. And I guess what I'm getting to is -- I'm looking at Fourteenth Amendment; it's almost like a dilution argument. In election day litigation, you don't want to deny someone the right to vote, but by the same time allowing someone to vote, or in this case, be represented in Congress who should not otherwise be, deprives citizens of the United States of privileges or immunities.


Dr. John S. Baker, Jr:  Yes, I and others made -- I've made that argument in The Wall Street Journal piece ten years ago. I and others representing the State of Louisiana made that argument in a petition to the Supreme Court in 2010. The constitutional question has never been resolved. The Census Bureau takes the position that every person physically in the United States on census day will be not only counted but will be included in a portion of it. So for instance, they not only count illegals, they count any foreign person in the country legally. They even count members of embassy staffs. USA Today, ten years ago, had an article about a person in a Washington State jail who was being deported that day and who was counted.


Micah Wallen:  And another question just came in, so without further ado, we'll move to that question.


Tim Harker:  Yes, thank you. My name is Tim Harker. The letter of the APA -- I have not read the district court opinion, but is the judge suggesting that notice-and-comment rulemaking is required in order to add questions to the census?


Dr. John S. Baker, Jr:  No, he was suggesting that there had not been reliance on the opinions of the experts. His APA argument is that it's arbitrary and capricious, and he gave reasons why he thought it was arbitrary and capricious.


Tim Harker:  So is he suggesting that to overrule the experts is an arbitrary and capricious decision by definition, or does he go through the record and point out --


Dr. John S. Baker, Jr:  Well, that would -- by the track that he had done that, yeah, that was one of the elements.


Tim Harker:  That's interesting because I worked at the Environmental Protection Agency when William Ruckelshaus overrode the decision of the administrative law judge who said that the DDT should not be cancelled under federal pesticide law. And Ruckelshaus literally, arbitrarily, overrode that. And nobody argued that Ruckelshaus had violated the Administrative Procedure Act at that point by disregarding that decision by the administrative law judge who heard weeks and weeks of testimony. Interesting.


Dr. John S. Baker, Jr:  I think some district judges feel that, at this point, they can make plausible statements that would have been laughed at years ago.


Tim Harker:  Yeah.


Micah Wallen:  Without further ado, we will move on to the next caller.


Caller 5:  Professor, I'm going to ask you to speculate on a topic or two. Assuming that this data becomes available, what is the likelihood that a state would redistrict using some metric of citizenship as opposed to total population? And if, indeed, there are a few states that attempt that, what do you think the outcome would be?


Dr. John S. Baker, Jr:  Well, wait a minute. We've got to distinguish a couple of things. One is the redistricting as far as the House goes. The other is the redistricting as far as state senate and state house issues, and we go back to the Evenwel case in terms of leaving this question a certain amount of discretion to the states. Evenwel is going to have some bearing on this, so I don't know if that responds to you in terms of speculation.


Caller 5:  It's close enough. Thank you.


Micah Wallen:  We will now move on to the next question.


Jon Newcombe:  Professor Baker, my name is Jon Newcombe. I have a question that's related to the prior question, which is even if the citizenship question is added to the census, how does that affect the whole question of electoral college and redistricting because Article I uses language like numbers and persons. I haven't seen anything constitutionally that sets out citizenship as a prerequisite for any of these redistricting or reallocation questions. Have I just missed something obvious?  


Dr. John S. Baker, Jr:  It's a difficult question. This was raised to me by an independent journalist ten years ago. And I started to look at the question, and I wrote a very lengthy memo that was then cut down somewhat when we applied to the U.S. Supreme Court in a direct action representing Louisiana and asking permission to go forward. It's not surprising that you haven't found it because you'd have to go look for that petition, first of all. Other than that and my Wall Street Journal article, I don't think you'll find that much.


Jon Newcombe:  So the Census Bureau is pretty much free to do whatever it wants, subject to oversight by cabinet officials?


Dr. John S. Baker, Jr:  No, not cabinet -- well, yes, the Secretary. Yes. This came out -- this is a good example of the administrative state in high gear, and it's Congress's fault. I mean, this occurred in the 1920s in a period in which immigration was as hot an issue as it is today, in 1920-21, thereabouts. Congress was so divided on this that it failed to reapportion itself in the House. And in 1929, I think it was, in advance of the 1930 census, they just kicked it over to the Census Bureau, and that's where it's been. And so you have statisticians who know numbers, but they don't really know the Constitution.


Just to give you a sidebar on this, they also allocate college students not to where they live, but into the state where they're going to college. It's a money issue, but it ignores the constitutional issue of the basis for lower in-state tuition for students because their parents are paying taxes in that state. The whole thing is distorted, and nobody's really looked at this. You go back, again, to what the Congress did at that time. It used to be that there was a requirement in redistricting that the district be compact. Congress dropped that, and that gave rise to the litigation regarding racially discriminatory districting, and all of this due to Congress abdicating its responsibility and kicking it over to an administrative agency that may have technical expertise -- and I'm not questioning their good faith, but they're doing a numbers job. And ultimately, the issue is a constitutional one, not a numbers game. I mean, it is a numbers game, but for constitutional purpose of allocating House seats and therefore, also, electoral votes.


Jon Newcombe: Could Congress legislate the response here, or does this -- by your comment here, is this a potential amendment process that we'd have to enter it into to define citizenship in relation to redistricting, and electoral college, and the like?


Dr. John S. Baker, Jr:  Well, I think that the position of the Census Bureau is wrong. And they issued a memo back in 2010 or so, and I put note in my article disagreeing. So at some point it'd be nice to have the issue litigated, but at best, that's down the road.


Micah Wallen:  We will now move to our next question.


Jim Williams:  Professor, this is Jim Williams, Jacksonville, Florida. The judge listed all these reasons the Secretary walked through, and the Secretary, his memo had numerous reasons for the decision, but it seems pretty clear that the analysis revealed one in three people or so were not telling the truth or correcting -- incorrect responses. Is that alone not sufficient to justify adding the question on the decennial so that the country has a pretty good estimate of who is legally in the country and who's not? That seems to me it would be important for numerous reasons, ranging from infrastructure, education, health care, you name it.


Dr. John S. Baker, Jr:  You make an excellent point. The reality is the judge went off on a pretext, saying that it really wasn't the Department of Justice asking him to do this that prompted it, that he wanted to do it on his own. But the irony is, in the course of all of the investigation that the Secretary did, he discovered something very significant. The numbers were bad, and we need better numbers. So regardless of what happens, the reality is there's plenty of reason to get a much better count than we have. The whole point of doing this is to get as good a count as you can. The reality is we never get a perfect count.


Micah Wallen:  Dr. Baker, is there anything further you wanted to add?


Dr. John S. Baker, Jr:  No. That last caller, though, really did make the most important argument, really, the simplified argument; that is, the system as it's been operating has not been producing adequate, accurate information. We need better information. The Constitution calls for an enumeration. The Congress has given the power to the Secretary. The Secretary's done the investigation. That's the reason to ask the question.


Micah Wallen:  On behalf of The Federalist Society, thanks to Dr. Baker for his valuable time and expertise today. We welcome listener feedback by email at Thank you all for joining us. We are adjourned.


Operator:  Thank you for listening. We hope you enjoyed this practice group podcast. For materials related to this podcast and other Federalist Society multimedia, please visit The Federalist Society's website at