Courthouse Steps Decision: The Census Citizenship Question, Department of Commerce v. New York

Operator:  Welcome to The Federalist Society's Practice Group Podcast. The following podcast, hosted by The Federalist Society's Federalism & Separation of Powers Practice Group, was recorded on Thursday, June 27, 2019, during a live teleforum conference call held exclusively for Federalist Society members.

 

Dean Reuter:  Welcome to a special Courthouse Steps edition of The Federalist Society’s Practice Group teleforum conference call as today we discuss the Supreme Court’s decision in the highly anticipated census case, Department of Commerce v. New York. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups here at The Federalist Society.

 

      We’re very pleased to welcome on short notice return guest to teleforum, Dr. John S. Baker, Jr., a Professor Emeritus at the Paul M. Herbert Law Center at Louisiana State University. We’re very pleased to welcome him back, as I said, on short notice. This is a decision that just emerged hours ago, so we’re very happy to have Professor Baker on the phone. He’s going to give us some opening remarks covering the background of the case, sort of soup to nuts, and the decision which is, I would describe, highly fractured and very dense and difficult to understand. So I appreciate the Professor’s efforts in digesting all this and being with us today.

 

      Those opening remarks, I think, are going to take probably 20 to 30 minutes or so. But, as always, we’ll be looking to the audience for questions, so have those in mind. With that, Professor Baker, the floor is yours.

 

Dr. John S. Baker:  Thank you very much, Dean. Well, anyone who was watching SCOTUS Blog and awaiting in anticipation of this decision, The Department of Commerce v. New York, was thrown into confusion. It at first appeared that the decision would uphold the Secretary’s authority, and then further into the opinion, it turns out, no, that doesn’t happen. It is very reminiscent of Chief Justice Roberts’s performance in the Affordable Care case.

 

      So what’s happened here? I’ll summarize the result, and then I’ll go through the elements of Chief Justice Roberts’s opinion. Basically, it comes down to this, putting to one side the question of the Administrative Procedure Act for the moment: Justice Roberts joins with, or is joined by Justices Thomas, Gorsuch, Kavanaugh, and Alito in saying that, yes, the constitutional requirement of enumeration gives Congress authority, and thereby extension, the Secretary, authority to ask demographic questions too. But at the end, the last section of the opinion, the Chief Justice flips, and he is instead joined by Justices Breyer, Kagan, Sotomayor, and Ginsburg to say that, well, while that’s the usual rule, it doesn’t apply in this case because the reasons given by Secretary Ross are, quote, “a distraction.” And they remand to the lower court with directions to proceed in accordance with this opinion.

 

      What I’m going to do is to go through the opinion and show that’s going to be a very difficult job for most district judges. But, of course, this district judge already has an agenda, and he’s already indicated he’s going to hold hearings on contempt regarding Ross and other people in the Department of Commerce. So this is going to be an interesting future for the Department of Commerce in Judge Furman’s court.

 

      All of the other opinions were concurring in part, dissenting in part. There’s an opinion by Justice Thomas with Kavanaugh and Gorsuch, and then there’s a separate opinion by Justice Alito. Each of those opinions are concurring and dissenting in part. And then there’s an opinion by Justice Breyer joined by Justices Ginsburg, Kagan, and Sotomayor. So there is actually unanimity in the first the two parts. Well, there’s unanimity as to the background case. That’s good. And there’s unanimity as to the question of jurisdiction which turned on standing. That’s the end of the unity.

 

      When we go to the question of background—I’ve covered this in past teleforum; I’ll just try to summarize it—there were two district courts, one in New York and one I think was in North Carolina, that received suits against the Secretary’s action to add the question. The big one is this one in New York. And it consolidated two other cases. In this New York case led by the ACLU in New York and California, you had, in addition to cities and counties, you had at least 184 non-profit organizations. And, of course, many of them are worried about losing funds. And the basic argument they're putting forth is that what the Secretary has done by adding the question is going to cause a diminution in terms of the count. The people will not come out and answer the census question. And as a result, those cities and states will lose money, federal funds.

 

      So beyond that—I’m not going to cover the standing question—the first real issue is Section III of the opinion, and it’s on the question of enumeration. I’m going to summarize quickly parts III, IV, and V, and then come back and read some sections from each one of them.

 

      The Chief Justice is joined by Thomas, Alito, Gorsuch, and Kavanaugh in this part saying that, yes, the Secretary has the authority to ask demographic questions. It’s a matter of history, etc. Part IV is on the Administrative Procedure Act, and there are three sections in this part of the opinion. And Part A recognizes that the normal rule is a deference to the administrative agency, and that you're limited to finding whether or not the agency acts were arbitrary and capricious. Was this unreasonable discretion being exercised? An interesting vote here: it’s 7-2, and the two are Justices Gorsuch and Alito who don’t even go along with that general view.

 

      Part B is a review of the Secretary’s action, and this goes back to the five with the Chief Justice and what are called the conservatives. I don't like that term, but for use of explanation, the conservatives. That’s the conservatives on B and C. Now that gets us through IV, and then V we come back to find out that, well, although it’s a general rule to ensure [no audio 07:23] and that it can’t be [no audio 07:26] [inaudible 07:29], in this case, [inaudible 07:31]. I will be more specific on that and actually read some from the opinion and section.

 

      So let me go back [no audio 07:40]--

 

Dean Reuter:  Hey, John, it’s Dean. You're breaking up a little bit. I don't know if you're moving around in your -- where you are. If you could find a good spot and stick there, that’d be great.

 

Dr. John S. Baker:  Okay, in Part III—this is really interesting—at the end -- this is on page 13 of the opinion, “In light of the early understanding of and long practice under the Enumeration Clause, we conclude that it permits Congress, and by extension the Secretary, to inquire about citizenship on the census [questionnaire]. We need not, and do not, decide the constitutionality of any other question that Congress or the Secretary might decide . . .” People got to that part and they thought it was over, that the administration had won.

 

      Then the next section, as I said, is on the Administrative Procedure Act, and that is still favoring the administration at that point. I mentioned what was IV–A. Let me just read a little bit from IV–B. “At the heart of this suit is respondents’ claim that the Secretary abused his discretion in deciding to reinstate a citizenship question.” As they noted, from 1820 to 2010 all, in except for one case, it was asked either on the short form, as we’ve come to call it, or the other alternative forms that are only sent to a small portion of the population, originally called the long form and now called the American Community Survey.

 

      And in this opinion—and we’re still in Chief Justice Roberts’s opinion—“the Secretary justifiably found the Bureau’s analysis inconclusive,” weighing certain factors. “The decision was reasonable and reasonably explained, particularly in light of the long history of the citizenship question.” Now he critiques Justice Breyer. “Justice Breyer would conclude otherwise, but only by subordinating the Secretary’s policymaking discretion to the Bureau’s technocratic expertise.” Justice Breyer had contended that the Secretary had to defer to the career bureaucrats, and obviously the Chief doesn’t accept that. Further, “he suggests that the” -- that is, he being Breyer, “He suggests that the Secretary should have deferred to the Bureau or at least offered some special justification for drawing his own inferences and adopting his own assumptions.”

 

      Part of the reason for reading this is to point out the extent to which certain justices expect the political appointees to march to the orders of the political appointees. That’s really a very interesting view of Article II. “The Secretary was required to consider the evidence and give reasons for his chosen course of action. He did so” in IV, that foresee them. It goes on about what the district court does. And then, point after point, the Chief is disagreeing with the district court, saying the district court was wrong. “The district court held, and the respondents’ argue, that the Secretary failed . . .” etc., etc. “Regardless, assuming the provision applies, the Secretary complied with it, for essentially the same reasons that his decision was not arbitrary and capricious.”

 

      He’s going through the Census Act—and this is a big part of Justice Breyer’s argument. Justice Breyer—and I’ll read a little bit from his opinion—he focuses primarily on the Census Act. And he gives this point, reading Section 195 of the Census Act, he says the Secretary, quote, “shall, if he considers it feasible, authorize the use of statistical sampling in collecting of demographic data.” And then he goes down further, “The other relevant provision . . . says . . . ‘to the maximum extent’”—which he italicizes “possible”—“and consistent with the kind, timeliness, quality and scope of the statistics required, the Secretary shall acquire and use information available from administrative sources instead of conducting direct inquiries.” “Third, the APA prohibits administrative agencies from making choices that are arbitrary [and] capricious.” I'm going to come back to that third point.

 

      On the first and second points of Justice Breyer, he’s saying essentially that they have to defer to the statistical expertise of those who run the Bureau. Now, at the end of the Section IV, the Chief Justice says, “In any event, even if we agreed with the district court that the Secretary technically violated [the particular section] by submitting a paragraph (2) report that doubled as a paragraph (3) report,”—this is about the report by the Secretary to Congress—“the error would surely be harmless in [those] circumstances.”

 

      So the Chief’s opinion has gone through and knocked down virtually every argument. And then you get this flip in Section V that’s just mind blowing. “We now consider the District Court’s determination that the Secretary’s decision must be set aside because it rested on a pre-textual basis.” As Justice Thomas’s concurrence/dissent points out, the Court has never overturned an agency decision on the ground that pre-text equaled arbitrary and capricious. So he repeats the Chief’s opinion, or repeats the usual rules that we’ve gone through before. And then he says on page 25, “We think it was ultimately justified in light of the expanded . . . record.” What expanded record?

 

      What happened in the fall of 2018, there was an emergency appeal up to the Supreme Court by DOJ when the district court ordered that the plaintiffs be allowed to take a deposition of Secretary Ross, a most unusual act. The Court, in an obvious compromise, sent it back and said, “Well, you can’t, at least for now, take the Secretary’s deposition, but you can do other discovery.” Well, it was that other discovery that got it out of the record. And he recognizes that what the district court did was wrong. Going back to the Chief’s opinion on page 25, “We agree with the Government that the district court should not have ordered extra-record discovery when it did.” Well, Justice Gorsuch, in the November 2018 opinion by the Court, predicted what was going to happen. And it did happen.

 

      Back to the Chief: “At that time, the most that was warranted was the order to complete the administrative record.” Again, Gorsuch warrant. “But the new material that the parties stipulated should have been part of the administrative record.” Not clear to me that the government did. If they did, they're totally incompetent. “Which showed, among other things, that the VRA”—that is, the Voting Rights Act—“played an insignificant role in the decision making process.” That’s not true. A whole bunch of attorneys general in the states sent a letter to the Secretary asking for that information because they're going to be defending litigation, following the census, regarding the distribution and the creation of districts.

 

      So after reviewing other material, or the view of the government and the Secretary, here’s what the Chief says, “And yet, viewing the evidence as a whole, we share the district court’s conviction that the decision to reinstate a citizenship question cannot be adequately explained in terms of the DOJ’s request for improved citizenship data to better enforce the [Voting Rights Act]. Several points, considered together, reveal a significant mismatch between the decision the Secretary made and the rationale he provided.”

 

      Then in the very last part, “Altogether, the evidence tells a story that does not match the explanation the Secretary gave for his decision.” He didn’t go as far as to say the Secretary was acting on pre-text, but the opinion by Justice Breyer certainly did.

 

      I think that covers most things, Dean.

 

Dean Reuter:  Very good. Let’s take the first call of our day.

 

Caller 1:  I’d like to ask if it’s a fair criticism to say that the split on the Court shows, over here, political bias and not ideological principle.

 

Dr. John S. Baker:  Well . . . you’ve got the question of the Administrative Procedure Act. That’s one thing. And it appears that both the district court and the four who are in Breyer’s opinion think that they can go further. There are a lot of people who think that we should cut back on the administrative state, and I’m all for that. The question is if you have the administrative state and you have the Administrative Procedure Act at this point, do you apply the Administrative Procedure Act as it is normally applied? Or do you start to make new rules?

 

      And as the end of Justice Thomas’s opinion points out, now almost anything the Executive does is open to pre-text challenge. And he gave the example of what happened when the FCC ruled on net neutrality. And it came out that they did so because President Obama ordered them to do it. In an ideal world, which I advocate, of separation of powers without independent agencies, I think the President has that power to do so. But you can’t have it both ways. You can have it and say, “Well, when we like the President, he”—or in the future, she—“can order the agency, even an independent agency, to do what I want the agency to do.” I think that’s what it should be under separation of powers. But if you're going to hamper it, separation of powers with the Administrative Procedure Act the way we have, then you can’t say that the normal rules don’t apply just because Donald Trump is President.

 

Dean Reuter:  Let’s take another call.

 

Caller 2:  It is unclear to me after listening to Dr. Baker what Commerce should do in response to this decision. It’s my recollection that they said that they had to either include it or not include the question by July 1st. Given this ruling, do they proceed to ask the citizenship question or not ask the citizenship question? I’d appreciate Dr. Baker’s view on that.

 

Dr. John S. Baker:  Well, first of all, as far as I know, that is true. That is, in terms of the deadline. One option might be, but I don't think it’s probably financially feasible and would probably result in a move to further enjoin, it could be possible to print two versions, one with and one without and then continue to litigate and see if you can get a resolution of this before they have to be distributed in April 2020.

 

      Now, that’s very difficult. It may sound easy, but the whole operation of putting the census together is extremely involved and time consuming. That might be a question—I think it’s a cost-benefit analysis—that is for the Department of Commerce. I don't know how they’ll weigh in on it.

 

      And maybe I wasn’t specific about this, one of the points that Justice Thomas made was that, look, the Secretary showed that he was willing to change his mind. After all, he was presented several options by the Census Bureau bureaucrats. And originally he preferred just asking the question. And they said, “Well, there are administrative records, and we don’t need the question. We can tell you who are citizens and not just with the administrative records.” And Breyer’s opinion said, “That’s what they must do.”

 

      Well, that’s interesting. Do you think the Census Bureau might just go back and say, “Okay, we don’t bother asking the questions. But from the administrative records, we can figure it out anyway”? The reality is what they learned, according to Secretary Ross’s memo of March 2018 was that the government has a whole lot more information that is available to the Census Bureau that the Secretary even knew about. And what they figured out from that is that the American Community Survey, which replaced the long form and continues to be used and it is a statistical operation where you use just a fraction of the population, on that they ask the same question. Indeed, they took the question from the American Community Survey and put it over on the census, or they were attempting to.

 

      But Justice Breyer is saying, “But you have to use it from there. You can use it from there. And in fact, civil rights lawyers litigating the redistricting questions need that information.” Well, guess what? It turns out that they found out, according to that memo, that the estimates made by the Census Bureau back in 2012 using a certain error factor or false response factor was much too low. So the 11 or 12 million estimate of illegals in the country is grossly low. And instead of a very small error factor, they found out that up to 30 percent of those responding to the question of citizenship on the ACS give a false answer. If you work that out, it produces we probably have at least 25 million illegals in the country.

 

      Now, there was a study coming out of Yale University not long ago, a month or 6 weeks ago, estimating up to 22 million illegals. The whole point of this was to get a handle on the issue. Well, if they can’t get a handle on it by asking the question directly -- and the argument is, “Well, if you ask the question directly, too many people won’t respond.” Okay, one argument is, “Don’t ask the question directly. Get everybody to respond. And then use the federal records as Breyer says they ought to do.”

 

      So I don't know. I’m not the Department of Commerce. I can’t tell you what they're going to do.

 

Caller 2:  What they're going to do is really not my question, however. Are they -- since it has been determined that this is not violative of the Enumeration Clause and matter has been—at least as I understand it—reversed and remanded for the district court to take further action not inconsistent with the opinion, are they free, if they chose to go forward at this point in time, to ask the citizenship question? They may choose not to do so given the costs, but were they to proceed at this point in time in that manner, would they be able to?

 

Dr. John S. Baker:  As I said at the outset of this program, I don't know how you proceed based on the end of the Chief Justice’s opinion. They're going to have to have a big pow-wow to ask, “What can we do?” And the plaintiffs will be right in district court saying, “You can’t ask it at all no matter what.” And this district judge is most likely to say, “That’s correct.” That’s the way -- he will likely say. That is the way I read this opinion. And what I'm telling you is the opinion is so convoluted that you can get different readings out of it.

 

      Great stuff for law schools. Not very good for administering a government.

 

Dean Reuter:  Let’s go to the next caller.

 

Caller 3:  Hello, Dr. Baker. Thank you for your summarization. I can’t say I understood a lot of it, but I just have a quick two-part question. First is the Chief Justice’s reference with pre-text. Is that a pre-text supposedly for racism, as to say, their using--

 

Dr. John S. Baker:  Well, the Chief was careful not to say pre-text. And that’s what another part of the puzzling thing of this. He doesn’t completely say that. It’s Breyer who says that. The Chief Justice refers to it, I think I read, as a distraction. He didn’t say it was a pre-text. He gave all reasons -- first he gave the reasons about why what the Secretary did was fine, and then he gives the reasons why it just doesn’t hold together.

 

Caller 3:  Okay. The second part of my question, the second part, is very basic. Was the ruling against asking the question, I think -- was it considered unconstitutional or did it simply violate the Administrative Procedure Act.

 

Dr. John S. Baker:  In principle, you can ask the question. There’s five votes. In principle, you can ask the question. But at the end of the Chief’s opinion, where he is joined by those on the liberal side, is that something doesn’t hang together here. You know, the reasons don’t make sense--

 

Caller 3:  What doesn’t hang together, I guess . . .? You can ask the question--

 

Dr. John S. Baker:  The statements by Secretary Ross to the effect that the reason he decided to initiate the question is due to his concern about the Voting Rights Act.

 

Caller 3:  Okay. Would he have been better off not saying anything? Just saying, “Well, I just want to ask it because previously we have asked it, and we want to put it back on the form?” Would that have been a better strategy? I mean, I guess it puzzling why doesn’t it answer the question? I mean, it doesn’t seem particularly unreasonable.

 

Dr. John S. Baker:  Well, you're agreeing with the concurring/dissenting opinions by Justice Thomas and Justice Alito. If you know what’s at stake here—huge amounts of money and power—that those who were plaintiffs in this case, who are very good lawyers -- they did a very good job. And they have an army of lawyers. I’ve been talking about this issue for years. There are very few conservative or libertarian lawyers that I could ever get interested in the issue. We have a tendency to wake up when it’s too late.

 

 Dean Reuter:  Three questions pending. Go ahead, caller.

 

Caller 4:  Professor, I’m a bit confused. There was a clear split among the liberals and conservatives, if you will, 5-4 on certain issues. But when they got down to the last page or two, they had unanimity, is my understanding. What were they unanimous--

 

Dr. John S. Baker:  Wait, unanimity? No, there wasn’t unanimity in the last few pages at all.

 

Caller 4:  Oh, I thought there was a remand, unanimous remand.

 

Dr. John S. Baker:  It’s a remand, yeah, but there’s not unanimity in the opinion. There is a remand. And what does that remand mean?

 

Caller 4:  Right. Was the remand agreed to by all nine justices?

 

Dr. John S. Baker:  That’s not clear to me. The remand is -- the remand says, “The judgment of the . . . district court for the Southern District . . . is affirmed in part and reversed in part.” Okay? You had different justices voting to affirm and reverse in part on the opposite sides. And the Chief is the only one who has a particular view of this case.

 

Caller 4:  To whom did they remand? Is there more than one court?

 

Dr. John S. Baker:  No, no--

 

Caller 4:  There’s just one district court involved?

 

Dr. John S. Baker:  On this case, yes. There was a separate district court, but in the New York case, it’s Judge Furman in the district court in New York City.

 

Caller 4:  They didn’t remand back to that judge as well, that separate matter?

 

Dr. John S. Baker:  The other matter came from a different state.

 

Caller 4:  Okay. And it’s not clear to your reading what the remand is to do specifically.

 

Dr. John S. Baker:  Oh, yeah. It says, “For further proceedings consistent with this opinion.”

 

Caller 4:  Okay.

 

Dr. John S. Baker:  That’s it. [Laughter] Look, if you're confused, join the crowd.

 

Caller 4:  I feel much smarter than I’m confused.

 

Dr. John S. Baker:  [Laughter] You should’ve seen it this morning when people were going crazy.

 

Caller 4:  Yeah, and that’s what you’ve been trying to do, work through that thing. What a mess. Thank you very much.

 

Dean Reuter:  We still have three questions pending, so without further delay, we’ll turn to the next caller. Go ahead, caller.

 

Caller 5:  Hello, Professor Baker. I have a question. Maybe you’ve already answered it in part. Assuming this case is remanded to the district court of Judge Furman, is there any -- does the opinion give any guidance for constraints as to how he many rule, or is he completely free to just reiterate his previous ruling in favor of the respondents?

 

Dr. John S. Baker:  No, I don't think so because I went over that section and parts of Section IV where the Chief’s opinion is saying, “He was wrong here. He was wrong there. He was wrong there.” So, as I read it, he as to pull those things out of his opinion or his approach. The original problems in this case where they used this hook that the DOJ agreed to this, which I'm not sure that’s even accurate. But if they did, I'm sure it wasn’t Noel Francisco doing it. And I’m also sure that if it goes down, Noel will be riding herd on this thing.

 

Caller 5:  The judge may be asked to alter his original opinion, or at least justify it, be consistent with the Chief’s opinion.

 

Dr. John S. Baker:  That’s what he should do. That’s not going to happen tomorrow. And their heads are still going to be spinning for a while. And they have to figure out what does this really mean, what can we argue? Because you’ve got to take the pieces of the Chief’s opinion and go through and match that to parts, I would think, parts of the 240-page opinion by Furman.

 

 

Dean Reuter:  Still three questions pending. We keep answering questions, Dr. Baker, but they keep popping up. Go ahead, caller.

 

Caller 6:  Reading the Chief Justice’s decision in this case and given his concurrence with yesterday’s decision in Kisor v. Wilkie regarding deference to agencies, are we looking at a situation where the Chief Justice is playing a role similar to that when the Affordable Care Act was being challenged, and the late, great Justice Scalia noted that it should be renamed “SCOTUS Care” after being rescued by the Chief Justice breaking away.

 

      And here we have the administrative state being thrown a lifeline, in a way, so maybe it should be “SCOTUS State.” Is the Chief Justice seeing his role as something other than -- maybe as was asserted by many, not a political role but a role of maintaining the courts as a neutral arbiter and not -- even if it’s well intentioned, the results are not very good? Is that something that we might be seeing in the future?

 

Dr. John S. Baker:  I don't know if you were here at the beginning, I noted the similarity, I thought, between this opinion by the Chief and his opinion in Obamacare case. So that’s one point. The second point was the Chief Justice’s role in terms of maintaining neutrality above politics by the Court. It certainly is the role of every justice to maintain being above politics. You remember that the Chief issued a statement saying that there weren’t Obama judges and there weren’t Trump judges or Bush judges. Unfortunately, that’s not true.

 

      I think the Chief is trying his best to do things as he sees it. And I think the way he sees it is probably different as the Chief than it would’ve been had he only been an associate justice.

 

Caller 6:  Let me ask just one more question, a follow-up on that. Is there a pattern that one can discern from the Chief Justice’s philosophy that could, for example, lead us to -- be able to see what he might decide in the many important cases coming up?

 

Dr. John S. Baker:  I’m not into the business of, one, predicting many things. Josh Blackman has this thing you probably know about where they ask people to predict the results. And I haven’t talked to Josh in a while, but a few years ago, he told me the number one guy was a non-lawyer statistician who was the best at doing it. So you’d have to talk to people who are more knowledgeable than I about those kinds of things.

 

Dean Reuter:  Let’s check in with the next caller. Go ahead, caller.

 

Caller 7:  Professor Baker, what is the status of the district court once the mandate is issued? Is the Secretary free to decide that he wishes to include the citizenship question, which could actually result in additional litigation? Or is he precluded from making that decision today?

 

Dr. John S. Baker:  Well, I answered that question, I think it was the first or second question, so I don't want to go all through that. I would just say again that I'm sure that the lawyers at DOJ and the Department of Commerce are going to have a lot to talk about and figure out what strategy they can do. I offered a couple of things to think about, not that they will think about them, but I have no idea what they're going to do. And I'm not sure exactly at this point what they can do. I’d want to think about it for a little while.

 

Caller 7:  Is there a district court order in place now?

 

Dr. John S. Baker:  Well, it was a district court order that’s been appealed. So now it’s been reversed in part and remanded. And so the order is not the same anymore. And there were parts of the opinion that clearly disagreed with parts of the order. The question is what is remaining of the decision by the lower court? A lot of times people don’t pay attention to the actual judgment. And I never saw the judgment. When you litigate, the court issues its opinion at a district level, and it asks the winning party often to submit a proposed judgment. And oftentimes, people don’t pay attention to the judgment. I haven’t seen that judgment. I don't know what’s in it. That’s where we -- if you're a lawyer down at that level, you're going to have to look at that. I haven’t seen it.

 

Dean Reuter:  Very good. Carrying on, we’ve just got one question pending now.

 

Caller 8:  My question has to do with the combined effect of Kisor and this case. When you put them together, it’s a very different picture of deference to administrative agencies than we had prior to this week. I wonder if you could talk about what you see as an accumulative effect on the administrative law as a whole of these two opinions put together and what they mean for practice in the future. I won’t ask the question about Chevron because we’ve seen that’s yet to take hold. And we don’t really know much about that yet other than the Kisor opinion holding it aside. But put these two cases together, what do they mean together for the future of administrative law generally?

 

Dr. John S. Baker:  I don't think I can tell you. I mean, since the opinion came out, I’ve been doing nothing but reading this opinion and organizing it and thinking about it. I’ll have to think about it and others will have to think about it. I’m a primarily constitutional -- I don't know all of the intricacies of administrative law, so without thinking about it more, I certainly wouldn’t want to offer an opinion.

 

Dean Reuter:  Two other questions just popped up from new callers. So let’s check in with our next caller. Go ahead.

 

Caller 9:  Asking a question about another contrast with a prior decision, the travel ban case, which also would seem to involve looking behind at other evidence of administrative, or in that instance, chief executive action, where, of course, the Chief was in a different place. And here, although he does not call it a pre-text, he calls it contrived a couple of times. So I guess I’m not sure exactly how to reconcile those either.

 

Dr. John S. Baker:  Well, as Justice Thomas said near the end of his opinion, after throwing out—I think it was afterwards—throwing out the possibility of unrestrained challenges to administrative action, he said, “Or this could just be -- this ticket is good only for this trend.” And there’s too much of that, and that’s why you can’t really reconcile a lot of these cases given the splits. I mean, how can you reconcile that you got in this opinion four justices on one side, four justices on another side, and the Chief right in the middle straddling both sides? Well, if you're primary aim, as the Chief basically stated in his confirmation hearings, is he was looking for unanimity. Remember, Chief Justice Marshall made his Court effective by forging unanimity.

 

      Now, you can’t get that same kind of unanimity today. But maybe from the Chief’s point of view you look at this, he gives some to one side and he gives some to the other side. Is that unanimity? To me, it’s not ultimately a question of unanimity; it’s a question of following the law. The question in this case didn’t involve a challenge to the Administrative Procedure Act; it involved an application of the Administrative Procedure Act.

 

      So I don't know how you’d follow or reconcile irreconcilable positions that are there because of the unique splits in particular cases.

 

Dean Reuter:  Very good. Let’s check in with out next caller.

 

Caller 10:  Is there any element of a remand to the agency to clarify? That’s A. And then B is to what extent does this become running out the clock rather than -- it’s firm we can just sit on this case at this point, or the other judges. Maybe that’s what they do because they're in sort of a weighing position now, and the clock runs out and it’s over.

 

Dr. John S. Baker:  I think you got it right. I’ve been in that position in a district court elsewhere where we had an emergency motion and they knew everything. And they just ran out the clock. So it decided the case without having the judge have to decide the case.

 

Caller 10:  And so there’s no element of remand to the agency to clarify. And I guess the last -- not remand, but is there any chance of a rehearing with the Supreme Court if they did a remanding clarified?

 

Dr. John S. Baker:  Well, this case has been up -- is the second time this case has been up there. And it may well go back again. It may go back again to the Supreme Court. But it depends on the district court. I mean, both sides going back are asking the tons of questions that you're asking me now, and they're sitting around wondering, “What do we do next?”

 

 

Dean Reuter:  We’ve got about 10 minutes left, one question pending. Go ahead, caller.

 

Caller 11:  Hey, there. Good afternoon. Quick question about -- and if you already discussed this, I joined the call late, so you can dismiss it if so. But I was wondering if you could discuss Justice Alito’s concurrence and his belief that the discretion of the Secretary cannot be challenged under the APA and how that interplays with the Chief’s opinion.

 

Dr. John S. Baker:  Well, that’s a good question, and I’ve only briefly looked at Justice Alito’s opinion. And so I can’t fully answer that, again, under the time constraints. But in one sense it was surprising because my recollection from the November decision was that he went along with remanding the case at that time. And had he not gone along, maybe the result would have been different. He was just very clear and very simple about how he did it in terms of you can’t go beyond the records.

 

Caller 11:  Sure. And then I guess as a follow up, could you -- because I’m actually not very familiar with the statutory framework under which a lot of this analysis took place. Could you clarify that a bit? I guess I was confused as to which portions of the U.S. Code even apply in this instance because the justices seem to have different opinions as to which laws even affected whether they could, and under which circumstances, they could review the Secretary’s decision.

 

Dr. John S. Baker:  Well, there was the Administrative Procedure Act, which I went through at length. And then there was the Census Act. And while there was some agreement on general principles as to the Administrative Procedure Act, there was the justification of going beyond the normal presumption in favor of the Secretary and allowing, even if it was wrongly allowed, the development through discovery of information beyond the official record. So that was one thing.

 

      The other thing was the Census Act itself. And I quoted parts from Justice Breyer who relies heavily on the Census Act and argues that the Secretary must adhere to the statistical approach using the American Community Survey rather than putting this on the decennial census, the short form, if it’s possible. And the Chief disagreeing with all of that. So that has to be -- it’s going to take a while to digest all of that in terms of what the litigants actually do when they get back there, as I’ve said before. You’ve got to take the disagreements in the Chief’s opinion and looking at what the lower court opinion was.

 

Caller 11:  And I guess you’d see that as a positive development in the law that the Court clearly saying that the Secretary shall not -- a bureaucrat in the Census Bureaus shall decide -- I mean, there is a sort of -- maybe a properly place deference there.

 

Dr. John S. Baker:  Yeah, I guess you can find a silver lining.

 

[Laughter]

 

Dr. John S. Baker:  It was like the silver lining they found in the Affordable Care Act afterwards.

 

Caller 11:  Fair enough. Thank you.

 

Dr. John S. Baker:  But I think there are a lot of different opinions that people have on this case.

 

Dean Reuter:  It looks as if we do have one final question. Let’s turn to what I think will be our final question for this call. Go ahead, caller.

 

Caller 12:  I apologize, I, too, joined the call late. As somebody who’s a skeptic of the administrative state, I particularly enjoyed Section IV–9A of the opinion, which the Chief Justice said that the exception for agency action committed to agency discretion by law is inapplicable, and therefore they couldn’t review it here. Despite the Court in the past has said that to be a narrow exception, it seems to be that both the Republican and Democratic administrations are constantly arguing with a particular decision as committed to agency discretion by law. So I was happy to see that argument rejected here. Do you see the Court’s decision on that point moving the ball forward at all so that perhaps the federal government will be less able to make that argument in the future? Or is it just simply more along the lines, say, of the way the Court ruled the same way earlier this term in the Weyerhaeuser case?

 

Dr. John S. Baker:  Well, I covered this before, and what it comes down to is Justice Thomas’s opinion about how unprecedented this is. We’ve never overturned an action because of pre-text. And if you're serious about this, then everything is going to be -- there’s nothing to can’t challenge. But he realizes, and I think most of us realize, the courts aren’t going to put up with this ad infinitum. They're not going to do it. But there will be some people doing it. And there will be some judges doing it until it filters up, and if there are enough of these cases, then maybe they’ll say, “Well, gee, we can’t have this going on.”

 

      Like probably you, I would like to see a rethinking of the administrative state. I’d like to see a turn more seriously to the separation of powers. But does this case move us back in that direction? I don't think so. But maybe you're right.

 

Dean Reuter:  Well, it looks like we have cleared the board, Professor Baker, of questions. We’ve got a couple of minutes left, so I will ask if you have any final thoughts.

 

Dr. John S. Baker:  It’s been very exhausting. So that’s all.

 

Dean Reuter:  [Laughter] I appreciate it. Let me end, then, where we began by thanking you for holding force with such little notice in such a complicated matter with so many different fractured opinions and so much that seems left to be settled. With that, I also want to thank the audience for dialing in. A reminder to the audience to monitor your emails, check The Federalist Society’s website for notice of our next teleforum conference call. But until that next call, we are adjourned. Thank you very much, everyone.

 

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