Courthouse Steps Oral Argument: Department of Commerce v. New York: Citizenship and the Census

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 Tuesday, April 23, 2019, during a live teleforum conference call held exclusively for Federalist Society members.     

 

Wesley Hodges:  Welcome to The Federalist Society's teleforum conference call. This afternoon’s topic is a Courthouse Steps Oral Argument on Department of Commerce v. New York: Citizenship and the Census. My name is Wesley Hodges, and I'm the Associate Director of Practice Groups at The Federalist Society.

 

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

 

Today we are very fortunate to have with us Dr. John S. Baker, Jr., who is Professor Emeritus at the Paul M. Hebert Law Center at Louisiana State University. We may also have another guest, Mr. Kenneth A. Klukowski, who is a Senior Fellow at the American Civil Rights Union who will likely be joining us mid-call. So please keep in mind that at the end of the call, we will have Q&A, so if you have any questions for this case or for one of our speakers, please keep them in mind and be ready for the Q&A section. Thank you very much for sharing with us. Professor, the floor is yours to begin.

 

Dr. John S. Baker:  Thank you, Wes, for having me back. This is my third time on this case, so I should know it. But I found out I didn’t know it nearly as well as the advocates in this case. It really was a great argument on all sides. Everybody did well. Although, I’ve got to say I’m biased here and I thought our Solicitor General, Noel Francisco, did an outstanding job. He really did.

 

Okay, with that what does the argument really come down to and then we can go into some of the details. Some of you on the call may not have been on other calls when I handled this and so just a brief background would help. Secretary Ross, back in March of 2018, announced along with a memo why he was reinstituting a question about citizenship on the 2020 Census. The last time on the census itself where that question was asked was in 1950. Beginning in 1960, things shifted to the long form, and therefore afterwards what’s called the American Community Survey. So as the Solicitor General pointed out over most of our 200 years, in one form or another, the question about citizienship has been asked. In the course of this argument, it really comes down to a question of who has the authority here to ask it. Is that authority properly exercisable by the Secretary of Commerce as the statute says? Or has he acted in an arbitrary and capricious manner which would allow further investigation under the APA?

 

When this issue first came up to the Supreme Court in the fall, as I mentioned before, the issue was whether the district court had gone too far in opening up discovery beyond the administrative record. The district court had indicted—this is a New York district court—that Secretary Ross seemed to be acting in bad faith. And based on that he authorized the plaintiffs to go into discovery, and even authorized the deposition of the Secretary of Commerce. The Second Circuit affirmed. It went up to the Supreme Court in the fall, and the Court kind of split in an interesting way in which they let it go back down but they prohibited, at least for the time being, the deposition of the Secretary. And the Secretary has not been deposed. He has since testified in Congress, but he has not been deposed.

 

Justice Gorsuch wrote a partial dissent in which he pointed out what was likely to happen, the game playing that was going on here. And it played out just pretty much as Gorsuch had predicted. Anyway, you’ve got to really hand it to the plaintiffs. They did a wonderful job of manipulating the system and getting beyond what should be basic question. There were two: do you have standing, and where’s the arbitrary and capricious action here? Otherwise, end of discussion. They got beyond that because they had a cooperative federal district judge and a cooperative Second Circuit.

 

It comes back, and so we have this very intense argument that is consumed so much with statistics. My son-in-law, who’s a PhD statistician, would’ve loved this argument. So if you're not paying attention closely, you kind of miss the argument -- or the issues because they tend to blend together here in this case.

 

The issues, as stated in the briefs, were one, was there showing that the Secretary had violated the APA? Two, whether the district court order allowing discovery outside the administrative record in an action to satisfy the agency action under the APA should be allowed, unless there is a strong showing that, one, he disbelieved the objective reasons he gave, or two, it was irrevocably prejudicial to the issue, or three, did he act in a way that was legally forbidden?

 

Now, there’s another issue that was tacked on because of a decision in another district court afterwards on the actual constitutional issue, the enumeration issue. That was knocked out of the case by the New York district judge, but there was a decision on this later. And so the Court, at the request of the Solicitor General, added that.

 

So you’ve got those issues but they're all running together. So, really, the first and most important question should’ve been at the district level and was glossed over was the standing issue. Chief Justice Roberts raised that issue, and the argument of the Solicitor General on that point was not extensive, but it was at a couple of points that, “Look, they may have an interest, but the problem of and the problem they identified is this question -- asking this question about citizienship is going to lead to a lower participation. They're going to be fewer people who are going to agree to actually fill out the census. It’s going to be more difficult to try to get them in terms of follow-up.” And the point under an analysis of standing is not just that you have an interest but that is caused by the defending party. And as Francisco argued, if people don’t participate, it’s not the cause of the government. That is, they are supposed to participate and if they don’t, you can’t attribute that to the government. But not much more was really said about standing.

 

When Noel got up there, he was hit right away and constantly. It was a very hard questioning series for him throughout. Justice Sotomayor hit him right away on the history of the census and questioned his statement about the historicity of the question, and that it was a traditional question. And she made certain distinctions about how it had changed, etc. At one point, Justice Ginsburg jumped in to support her. But Noel, I got to say, was really firm, forceful, and always has his facts straight. And this was a complicated issue all the way through.

 

After that initial volley, the rest of it was largely devoted to the statistical questions. Because in his memo back in March of 2018, the Secretary was dealing with the opposition from the Census Bureau people. They did everything they could to stop him, to persuade him not to include the question. And he went through a series of things in terms of what the options were. So there was A, B, C, D options. That is they could simply do what’s been done since 1950 – not ask the question. You could rely on the basic census. You could rely on the American Community Survey. Or you could do a modeling that they suggested based on the administrative record and that they claim this would be more accurate. What the Secretary came up with was a combination of two things. One, he agreed to use the administrative records. And he also wanted to use the census question, and his argument was using the two would be more accurate than either of those two by themselves.

 

Now, when it came to the transcript of the trial and the respondents -- and of course certain Justices emphasized that the statistician who was testified said that this was not -- it all came down to a question of accuracy. Who was more accurate on what? And that’s where the real statistical issues started. What are you talking about? What is the accuracy that you're looking at? Is it total count? Is it people who are not responding? Is it certain demographic groups, namely Hispanics and other non-citizens? And this went back and forth, and I must say, in this when it came to the respondent’s time, Justice Alito was very strong and showed quite a mastery, actually, of the whole problem regarding the various options. And of course his point all the way through was, “Wait a minute. Unless you can show that it’s arbitrary and capricious . . .” he didn’t really have to rely on what the statisticians were saying because they couldn’t guarantee to him that it was going to be more accurate their way than the way he thought would be more accurate. Is that arbitrary, or was there a reasonable basis to that?

 

So that was a big part of it. One of the, what I consider, amusing points in the whole thing was that Justice Kavanaugh pointed out that the United Nations recommends that all countries ask the citizenship question on their census. And it’s too bad Justice Kennedy was not still there but still Justice Breyer I’m sure knew where that question was directed -- or comment was directed. Later on, Justice Gorsuch chimed in in agreement with that.

 

Roberts only had a few points, but it was hard to tell. In addition to standing, he challenged the respondent’s by saying, “Do you deny that getting this information would help in the Voting Rights Act?” because that was enforcement. That was a big part of the Secretary’s memo that the states needed this kind of information. And a number of states had requested this information. There seems to have been great agreement that the statistics from the American Community Survey, which the respondents said should be sufficient, were shown to be largely agreed to as being inaccurate. Justice Gorsuch made the point near the end that, “Look, some of the same people here as respondents and plaintiffs below, they have in other cases come up here and argued to us that you can’t rely on this data. But now they want to rely on data that they’ve told us before is unreliable.” That was a very telling point.

 

At the end, after the respondents had their various advocates up there, Noel came back for a closing. And he started out with four points, and quickly, Justice Sotomayor tried to derail him. But he got in the really strong close where he said, “Look, if you agree with the respondents in this case,”—and he had made the point all the way though in part—“you're opening up virtually every question, not just on the census which is relatively short, but in the American Community Survey.” And then he said, “If you can just get a group of people together who don’t like the question and who say that they are going to be -- their group will turn out less, will not agree to fill out the form, then you're going to have the same problem on all of these questions.”

 

So, again, I thought Noel did a fantastic job. But all of the advocates did. Underwood did a very credible job. The lawyer for the ACLU was clear and forceful. The lawyer for the House of Representatives was a little more folksy or casual about it but still credible. So it was a great argument to listen to, to watch. So, Wes, that’s my summary.

 

Wesley Hodges:  Thank you so much, Professor. I’m delighted to share that Ken Klukowski is on the call. Ken, we turn the mic to you for your remarks on the case.

 

Kenneth A. Klukowski:  Yes, I am. And thank you so much for having me. And thank you, John, for the opportunity to team up with you on this. As you hit, I think, several of the highlights from the oral argument, I’ll just add several additional observations to that. Or actually, additional data points. Though, I’ll begin with the observation that I agree with you, and perhaps like you, perhaps I’m biased on this, but I did think Noel Francisco carried the day in terms of the quality of presentation.

 

There were great arguments offered by all four lawyers who presented, and I agree each one had their own style. I would’ve been fascinated if the House had remained in Republican hands and he had kept that post. I would’ve been fascinated to see Tom Hungar arguing this case, for I’m confident that he would’ve been on Noel Francisco’s side. But in this three-to-one argument, Noel knew everything backwards and forwards. John cited several of the points from argument that I was going to mention. Instead, I’ll just focus on what I thought were several of the others.

 

One of the best lines, if not the best line, and it was repeated in two different ways during the argument, was from Justice Alito, where he came back to this and the other side just never had a way to get around it. I think it certainly overcomes the issue of whether this is arbitrary and capricious. And that is that Alito said, “Hang on a second. The choice that was presented to Secretary Ross was -- you have two approaches here. We can ask about citizenship or perhaps we don’t. We’ll just use ways where we impute citizenship and where we estimate it. And that the numbers the Secretary was given was if we’re asking the question, we expect 22 million responses at a 98 percent accuracy rate. Or if we don’t ask it, then we can impute date for 35 million people,”—so a larger population—“but at an unknown error rate.” And that as he said, “The bottom line was you can go with the second item because you can just trust us.” He said that several times. “But trust us.” We can give you 98 percent accuracy on 22 million, or we can give you a completely unknown percentage accuracy on 35 million, but you can trust us that we think that methodology will be better.

 

And the issue was with the Secretary given that option, as Noel Francisco put it, having a burden to hand option of knowing what the count would be and how high the rate was supposed to be, he just choose to go with the one that had more concrete features as opposed to the “trust us” angle of an unknown, accuracy rate. And, again, he came back to that twice, and no one squarely confronted that. Now Justice Kagan came in and said, “Who knows? Maybe it could be something that’s 99 percent accurate. 99.5 percent accurate.” But, of course, she was just throwing out numbers. There’s nothing in the record, nothing was ever presented to the Commerce Secretary to say that the accuracy of the larger population would be higher than the 98 percent that a hard count of the actual question they thought they could guarantee.

 

Now, on a separate point which I also thought was key, with Justice Sotomayor, and I’ll add to what John said: it was beyond coming right out of the gate. I need to check the transcript to see if Noel actually finished his opening sentence or not, but as I’m sure --

 

Dr. John S. Baker:  -- No, he didn’t.

 

Kenneth A. Klukowski:  Yeah, as I’m sure many of you who have been to the Court before, typically you get at least a couple sentences, maybe on a good day 30 seconds. He was -- and John just said he didn’t think he reached the end of the first sentence. It was in the first few words before he could even frame up the case and put it for the bottom line on his argument that Justice Sotomayor just attacked out of the gate and attempted to derail him at the outset. Of course, Noel is not that easy to derail so he kept going.

 

But when Justice Sotomayor was making the point that this would undercount, that including the question would undercount an estimated 5.8 million people, and that, therefore, this violates Section 6(c) of the Census Act. That provision, by the way, says, because this came up repeatedly, “to the maximum extent possible and consistent with the kind, timeliness, quality, and scope of the statistics required, the Secretary shall acquire and use information available from administrative records instead of conducting direct inquiries.” And she was coming back saying, “Look, if asking the question means we’re going to have this undercount, then it violates Section 6(c) for you to be doing it.” In fact, many times it seemed like Justice Sotomayor was arguing the case more than she was necessarily asking questions.

 

Noel shot straight back. He said, “Well, then you can’t ask about sex. And you can’t ask about race. Anything that you're asking about beyond the number of questions,” he pointed out, and I'm not sure if Justice Sotomayor knew this before Noel pointed it out, is he said, “Section 6(c) does not just pertain to the actual, decennial census. It also pertains to the American Community Survey, the ACS.” Which is what the main argument was. Everyone acknowledges they ask about citizenship on ACS which goes out every couple of years to 1 out 38 households in America. It used as a statistical fill-in for the decennial census. And he said, “If you can’t ask about it on the census, if your point is that it’s a 6(c) violation, that pertains to all census instrumentalities which would include the ACS. You can’t be asking about it there, but for that matter you can’t ask about race; you can’t ask about sex; you can’t ask about all of these things that have been asked about in such a standard format.”

 

I think—switching Justices here—the most interested thing I heard from Justice Breyer, who went on at some point at quite some length without any questions—I wasn’t sure if there was ever going to be a question—but at one point, I'm not sure if he -- somehow I doubt he was trying to put up a soft ball, but I think that was the net result -- is he cited to the testimony of Dr. Abowd, who was the statistical expert who’s expert advice was provided to Secretary Ross for the Secretary to make the decision. And about when Breyer was asking about whether there was credible testimony regarding fewer people being counted as a result of asking about citizenship, Noel hit is right out of the park by quoting Dr. Abowd’s testimony where he said -- where the statistician said, “We do not have enough evidence to quantify that.” And so once again the issue was in terms of arbitrary or capricious, the Secretary only had to have a reasoned basis for the decision that he made. And so they did a great job of recreating what the administrative record was before the Secretary.

 

There was kind of not quite a sharp exchange but there was a point where, I believe it was the New York Solicitor General who was going off on another line of argument regarding evidence, and Chief Justice Roberts came in and said, “Is that in the administrative record?” And when she said no, he said, “Then I don’t want to hear about it.” So there was an effort to, I think, shut down that extraneous material.

 

But one other highlight, at least for me, from the Chief Justice was as they were looking at the various questions that were being asked -- and of course the gravamen of the challenger’s argument is you don’t need to ask about citizenship. Why are you asking about this? You're purpose is just to get an enumeration, the subtext being anything that just distracts from that is counterproductive. It should not be done and the law does not permit to be done. Roberts came in saying, “Well, but you have all of these questions that are quite common. They're asking you if you own a radio.” And I think he used it as a good example of what does that have to do with the price of tea in China? Why does it matter if someone owns a radio? How does that pertain to an enumeration for purposes of political representation? Obviously, I think that question he selected to show that the Census process is used to acquire a great deal of information, and that a question about citizenship might seem to be more relevant to a lot of policymakers than whether or not someone happens to own a radio.

 

There was also an exchange, and perhaps I’ll close with this and then move to Q&A. There was an exchange -- there was something of a tag team line of questions from Justice Alito and Justice Neil Gorsuch where, as Gorsuch made the point, he said in terms of the non-responsiveness, either people who didn’t respond at all or people who would break off from responding, he pointed out -- he says, “We don’t have any evidence disaggregating the non-responses, do we? We don’t have any sort of data that shows this person did not answer because they were asked about citizenship versus because this person was asked about some other question that they chose not to answer.” And on the other side, the challengers, all of them, none of them could provide a satisfactory response to that. There is, in fact, no evidence in the record as to who stops for purposes of wanting to avoid one question versus another.

 

Justice Alito, as I mentioned in that tag team exchange, though I think he said this first, is he said, “There’s more variables in play here than a person’s citizenship. There are differences in socioeconomic status. There’s differences in education. And there’s just no data set that cross tabulates all of those distinctions and correlates them with that.

 

Now, it did come up, one of the attorneys on New York’s side of the fee, Dale Ho, who I believe if I’m not mistaken was representing the New York Immigration Coalition --

 

Dr. John S. Baker:  I said the ACLU, but it may have been the Immigration Coalition.

 

Kenneth A. Klukowski:  At least that’s how he was listed on the call sheet. I’ve never had the pleasure of litigating against the guy. He made the comment that Hispanics are eight times more likely than non-Hispanics to break off taking the census, at the point they're asked about citizenship. Now, there was nothing said to rebut that, but nothing was put in to really unpack that. I thought that that was -- that was the last point that he made, and I thought they could have done themselves some good to have tried to elaborate a bit on that. Though that came right after Justice Gorsuch mentioned that actually the breakoff rate, at least according to the statistic he was mentioning, the breakoff rate is only 0.36 percent. So 1 in 300. And I believe that comment was made that this question is put at the very end of the form. So the idea is insofar as the longer the form is, the more people choose to stop the process and not complete it. I think that’s where the point was being made that it is a small fraction of one percent of people who get to the end of the form. And then just choose to give up on the whole enterprise because they're being asked a question at the end.

 

So I think Justice Kavanaugh, insofar as he has had less time on the bench to hand down enough decisions to give as clear of a jurisprudential picture about his philosophy, how he looks at the law as a Supreme Court Justice as opposed to an appellate judge, where I’m sure many of you, like me, have read a great many of his decisions from the D.C. Circuit, Justice Kavanaugh seemed to be agreeing on multiple accounts with the administration’s argument on this. The Chief Justice as well seemed very, very skeptical about the arguments being made by the challengers. So it didn’t look like anyone was -- no one was couching their comments in a way that seemed to be hiding the ball or cards in terms of where they're at.

 

I would notice I thought this got a little bit into the mud right at the end, and I’ll close with this, is during rebuttal when I thought Noel was making an excellent point that John mentioned in his remarks to say that, “Look, insofar as the longer the census is, the more questions you're asking, insofar as every additional question runs the risk that an increasing number of people will just stop taking it, not fully respond, or there might be a question that they find offensive, or that they just don’t want to deal with, and so that leads to non-responsiveness. Insofar as you're doing that,” he said, “we’re talking today about citizenship. But you could get any number of people who could organize as any sort of public interest group to advocate against a specific question. And, essentially, to be boycotting the census and that you don’t want this to become a method by which anyone can try and nix a question on the census just by saying, ‘Well, if that question is there, we’re not going to take the census.” And that’s going to hurt your count. You're going to have less accurate data regarding the number of persons; and therefore that will defeat the census’s purpose of having an accurate count for purposes of political representation and all of these other issues that we’ve talked about, whether it’s VRA enforcement, or federal funding, or whatever.

 

And Justice Sotomayor came in and said -- and I don’t want to mischaracterize her remarks so I’ll be careful until the transcript is released and we see precisely what her choice of words were, but it was along the lines of -- there was a real sharp tone in terms of essentially, “you're not accusing Hispanics of trying to boycott the census are you?” And I think that that was an unfair characterization and a shading of identity politics into what was otherwise just a very fair point: to say that countless people in this country can be mobilized and concerned about any number of issues and that you just don’t want to create a dynamic where at any time you ask about anything, if there’s any significant number of people who have a vested interest regarding that subject matter, that they can aggregate their efforts and force the Census Bureau to just not ask about it. I think that was a very neutral point that Noel Francisco was making. And I think just making it specific to a particular racial or ethnic group was just an unfortunate to end argument on.

 

But the reality is, it’s a matter of realpolitik. I think everyone understands that that’s certainly a significant component to a lot of the opposition to asking this question. So perhaps it was just getting real at the end, that something did come out to accentuate the point that, as I would put it, that the Secretary of Commerce was given a reasoned basis to make the decision that he did. And as was said in the U.S.’s legal brief—didn’t come up in oral argument—but as the SG put in the briefing, it was to say that the district court here—and some of the lawyers arguing in this case—took everything that the U.S. government did or said about this and just interpreted in the worst possible light as opposed to the best.

 

Only a fool makes predictions based on how oral argument goes, but I’ll go out on a limb and say that I think the Trump administration is looking at a 5-4 win off this case. And with that I’m happy to turn it over to the host, to John, and to Q&A.

 

Dr. John S. Baker:  Wes, I’d like to add something. Two of the Justices, Sotomayor and Kagan, referred to judge shopping by Secretary Ross. And it was the way the context occurred between commerce and justice and initially rebuffed in a way by justice, and then they came back, and then they went elsewhere. But that goes along with there was an attitude of it you do not accept the experts, the statisticians, then it is somehow arbitrary and capricious because you're not a statistician.

 

Now recognizing that the statute does require that to the greatest extent possible that you use means that are going to produce the most accurate one, this is a good example of what happens in the administrative state. Congress in the 1920s totally abdicated their responsibilities with the census. They couldn’t and didn’t come to an agreement in terms of reallocating seats in the House. And then they kicked all of this in 1929, 1930 over to a Census Bureau. And typically as what the administrative state people want is for the administrative state to act in a certain way. But when somebody comes along who doesn’t agree with their politics, like Ross and Trump, and they make a political decision, which, after all, is what the Executive Branch does when you give them the discretion. They didn’t have to give this discretion to the Secretary. They did. But when they don’t like the way you exercise it, then it is somehow wrong for you to do so. Anyway, enough.

 

Wesley Hodges:  Thank you, John. Ken, do you have any comments before we move forward, or are you okay as well?

 

Kenneth A. Klukowski:  No, I’m fine to move forward with Q&A. I certainly second what John just said, that the tone was if you have these experts, if you do anything other than rubberstamp their recommendation to you, then surely there must be some sort of impermissible motive in play because you don’t have their expertise. But as John points out in a democratic republican form of government, these are staff. They work for, in this case, someone who is chosen by the President and confirmed by the Senate, and, again, was put there by the President who was actually elected [by] the people. So unless you want the administrative state to just be running your life in an autocratic fashion, it’s just absurd to say that anytime a boss disagrees with his subordinates, surely a court must now set aside the boss’s decision because the boss -- the fact that he didn’t listen to his experts must mean that something is afoot.

 

Wesley Hodges:  Very good. Thank you, Ken, and thank you, John. Here’s our first caller of the day.

 

Ken Masugi:  Hi John. Hi Ken. Those were terrific presentations. This is Ken Masugi, and I like the connection between the administrative state and what’s at stake here. And it really is an issue about self-government, isn’t it? Because it should be the most simple question. Can there be some reliable means of identifying the number of U.S. citizens? And to deny this as a possibility seems to be to cutoff the relationship between basic political rights and our natural rights as human beings. And the default position taken by the State of New York appears to be that social scientists and these various identity groups are the ones who ought to be deferred to. I think that’s what was being implied in the very last comments, but perhaps, John, you might elaborate on this.

 

Dr. John S. Baker:  I certainly agree with everything you said. And so much could be said, and you’ve already said it, in helping to write a book on the administrative state that’s worth reading.

 

Ken Masugi: Well, thanks.

 

Dr. John S. Baker:  Do you want to give them the title of the book so they can go out and get it?

 

Ken Masugi:  It’s a collection of John Marini essays called Unmasking the Administrative State. I highly recommend it as I was the editor.

 

Dr. John S. Baker:  Good. And now you can add a chapter regarding the census case.

 

Ken Masugi:  Yes, I think one remains to be written. I hope you write it, John.

 

Wesley Hodges:  Well, very good. Thank you, caller. We do have two more questions in the queue. Here’s our next caller.

 

Cleta Mitchell:  Hi, this is Cleta Mitchell, and I want to thank you all, both John and Ken for your great analysis. It was heartbreaking not to be able to be there in person. Two questions, I’ll ask them both and then you can answer. The first one is what I found the most disturbing over the last few months were the personal attacks on Secretary Ross, including but not limited to a terrible article that George Will wrote on Sunday calling Secretary Ross a liar. I just wanted to know if any of that record was at all corrected during the argument, or if you felt the Secretary was only somewhat vindicated during the course of the argument.

 

And secondly, I was curious about whether Ruth Bader Ginsburg had said anything that was of note.

 

Dr. John S. Baker:  Cleta, I was there with your friend and lawyer for Ross, David Dewhirst. The issue regarding real or anything derogatory, per se, about Ross did not come up other than I would say the shopping question. That is that he was shopping around for what he wanted, and that he had an agenda. But that’s what political appointees are supposed to have – the President’s agenda after all. How strange. And I think David -- you can talk to him but I think you’ll find that he was pleased with how things went. Certainly anybody who agreed with the position put forward with Noel had to be thrilled with Noel’s presentation. It was that good.

 

I forget, what was the second question?

 

Cleta Mitchell:  What about Ruth Bader Ginsburg?

 

Dr. John S. Baker:  She had a couple of comments but she was so slunk down in her chair it was hard to even see her. She backed up Justice Sotomayor a couple of times. Other than that I don’t remember anything really remarkable.

 

Kenneth A. Klukowski:  Yeah, I think I agree with that regarding Justice Ginsburg. A couple of times she came in quickly after Sotomayor to try and restate and reframe and then repress a point. Now, ironically, there was one point towards the end talking with the House counsel where I think she helped unpack a narrative that did not help the challengers here. And I don’t think that’s what she was trying to do, but she made the point that was made -- she gave voice to the point that Noel had made in his briefs but had not really come out prominently in oral argument to that point that Congress had been alerted to what the Commerce Department was doing here: that they knew about it and that Congress -- that primary responsibility—and this is not just Justice Ginsburg. This is Noel Francisco. I’m blending their words together where the bottom line was, between the two of them—was Congress has actual responsibility for the census. Congress has delegated extraordinary discretion to the Secretary of Commerce in how to do this, but that ultimately Congress can by statute override a discretionary call by Commerce anytime it chooses; that Congress has now known for years that this was coming; that there are individual members of Congress who are complaining about it, but that Congress has taken no action to stop this question from being asked. So I think, of course, in the end that becomes a point that ways in the administration’s favor in terms of saying if this is something that is beyond the ken of what the Commerce Secretary is authorized to do, why hasn’t Congress done anything about it?

 

Wesley Hodges:  Well, very good. Thank you so much, caller. We appreciate your questions. We do have several questions in the queue, from my eye four. So let’s keep moving. Here’s our next caller.

 

Mitchell Teeter (sp):  Mitchell Teeter calling from Los Angeles. As you noted, there are many cases, many lower court decisions that have constrained the administration’s ability to operate and make decisions, often due to the APA. And my question is since the Court hasn’t and probably won’t take up all of these cases on all of these different subjects, what effect do you foresee this decision having on the broader question of executive authority?

 

Dr. John S. Baker:  Well, I’ve said all along, not just on this case but on other cases, that the areas of presumption of bad faith on the part of this administration in the minds of certain judges, and the plaintiffs are able to, certainly in the Ninth Circuit, exploit that kind of underlying current. And they are more willing to impute bad faith. Justice Gorsuch said in the fall opinion that it was really extraordinary for a district judge to impute bad faith to a member of the Executive Branch as a cabinet officer. That’s where we are.

 

Kenneth A. Klukowski:  Yeah and along those lines I think that -- again, this didn’t come up prominently during oral argument, but in the brief, in the SG's brief to the Court, where of course they cite to a whole line of Supreme Court precedent, making clear that there is a presumption of regularity in terms of these discretionary calls by the Executive. To put it in other terms there’s something of a presumption of good faith, and the burden is on the challenger to provide evidence that in fact it’s merely pre-text. That there is, in fact, bad faith here. And I think that that gets back again to what the SG said in the brief, that in every aspect of this drama, at every point, the district court judge looked at everything the administration, whether it’s the Secretary or whoever else -- everything that was said or done was cast in the worst possible light; that there was a reoccurring presumption of bad faith that everything he said or did it was, “Surely, there must be something wrong going on here.” And I think when you have that kind of approach, that explains why you need 277 pages of decision to answer what should otherwise be a rather straightforward question of law.

 

Wesley Hodges:  Well, very good. We have four questions still in the queue. Let’s go to our next question.

 

John Shu:  John, Ken, this is John Shu in California. Thanks for the presentation. I have two quick questions. The first is whether anyone brought up during oral argument the fact that the Clinton administration had put in the census question about citizenship on the short form, and if so whether that made a difference. That was in ’99 and 2000 when the Clinton administration did that. And of course nobody complained.

 

And then my second question is whether anybody brought up during the oral argument not so much the administrative state but just that Congress had delegated to the Executive and constitutionally, structurally, the Executive has very broad power on its own in determining how the census should be conducted and completed and reported to Congress. Thank you.

 

Dr. John S. Baker:  Okay. John, good to hear from you. No, nothing was said about the Clinton administration. I think you mean on the long form, not the short form. Second, about Congress. The only extent to which that was really covered, Ken’s already talked about it I think with regard to the point made by Justice Ginsburg.

 

Kenneth A. Klukowski:  Yes, and it was at the end there. Yeah, I don’t recall anything being raised about the Clinton administration or a real point made about how the Obama administration did not ask about it. There wasn’t much talk -- I don’t recall any talk about the previous two administrations and kind of how one went one way consistent with longstanding practice and how the other went the other way. \

 

I did appreciate it, even though he couldn’t get his first sentence out, but the way Noel Francisco was framing it in his opening is just that the Secretary reinserted a question that had been regularly asked for nearly 200 years. And that historical pedigree, which is found in really every page of their brief, that point was fully and regularly made. But again for the challengers in the case and for several Justices on the Court, there was really -- the discussion was about kind of the alarming nature of asking this question. There wasn’t as much focus on if this is such a threat to democratic representation to be asking this question, then why the heck was it done most decades throughout most of the life of the nation?

 

So I think that historical pedigree -- it came up several times. But I’m surprised it didn’t get more play in that regard.

 

Wesley Hodges:  Thank you so much. Let’s go ahead and go to our next question.

 

James Lucas:  This is James Lucas in New York. You mentioned that although the New York judge had dismissed the constitutional argument that the Justices had asked that the constitutional argument be addressed in the context of this case. So I was just wondering if, during the oral argument, the interpretation of the Enumeration Clause came up or seemed to be at all significant in the Justices’ considerations.

 

Dr. John S. Baker:  Well, it was discussed in several different ways. The question at one point was—and this was made by the lawyer for the House—that is that although the census has other purposes that Congress has added to it, the most important, the constitutional purpose is just enumeration. And I certainly agree with that. So then the question is are we threatening the enumeration? And their argument was basically the diminution and responses threaten the enumeration, and then the question becomes a statistical one that we talked about before. How much of a reduction in participation are you going to get?

 

By the way, there’s always been -- every 10 years there is a fight over the census in terms of the turnout. I have clippings from the last census showing the same arguments from the left about why there was going to be undercounts. They always claim undercounts and they go in and litigate it. It’s the cities. They're after the money. They don’t care about the enumeration so much. They care about the money. But even if you go back to the first census which wasn’t a full census, the original one, but George Washington was complaining about an undercount. So you’re never going to get a perfect count, and the extent to which we have refined the ability to count is amazing.

 

But it also ought to be pointed out and it’s not in the record at all but I’ve looked at this stuff, and that is it is not pure science here that you have political groups that go in and lobby the people in the Census Bureau. And they have these advisory groups which are loaded with identity groups. So the whole thing is you’ve got statisticians and then you’ve got pressure groups affecting them. There aren’t any internal, conservative pressure groups.

 

So back 10 years ago, the issue was do you count prisoners in the city where the prison is, or should the city from which they committed the crime, shouldn’t they get credit for those people being in the city? Well, why do they want the credit? Because they want the federal dollars. It’s all about the money.

 

James Lucas:  Well, I would add it’s also about the representation. The money and the representation because this impacts representation not only in Congress but also the state legislatures.

 

Dr. John S. Baker:  Okay, within state legislatures. It doesn’t affect the state’s representation in the House. There are other things that affect the state’s representation in the House that have to do with non-citizenship.

 

Kenneth A. Klukowski:  I guess the only thing I would add to that is one thing that did not come up in oral argument and it was the gravamen of the Evenwel case that Will Consovoy argued a couple years ago. And that was what are we representing when we’re talking about representation, insofar as if you're just counting persons, you have this entire separate line of mainly of equal protection jurisprudence talking about one man, one vote. Well, obviously in that regard you're talking about citizenships because otherwise districts with a large number of non-citizens would relatively give greater weight in terms of political representation to the vote of every citizen since there would be fewer voting citizens choosing any given elected representative. So that, of course, didn’t come up.

 

Nor did it come up the question that the Court reserved in Evenwel. And that was where the Court said, “Well, we all agree today that the Constitution does not require a state to draw lines based on citizenship. But as to whether it gives them the option to do so, we’ll reserve judgment on that question until some state actually does it. Well, of course since lines must be drawn based on census data, if the census can’t ask that question, then no state can ever have the actual geographical data to ever draw lines in that fashion. But none of that actually came up today. It’s just a clear implication if the Court decides the case the way I believe they will in terms of allowing the citizenship question to appear on the census.

 

Wesley Hodges:  Thank you, caller. Let’s get to the next caller’s question and likely wrap up. Caller, you are up.

 

Rod Sullivan:  Hey, this is Rod Sullivan down in Florida. Professor Baker, could you elaborate a little bit more on what you said about the citizenship question affecting enumeration of congressmen but not of state reps or vice versa? Did I hear that correctly?

 

Dr. John S. Baker:  Yeah, well I wrote about that in the Wall Street Journal back at the time of the last census and made the argument that they shouldn’t be counted – non-citizens or at least non-nationals, nationals being citizens and permanent legal residents. We don’t know whether that legal issue will come up again, but it has been raised by the State of Alabama in litigation that’s pending down there. And they are arguing, as I argued back in the last time, that the inclusion of non-citizens in others states is the cause of why they will likely lose a representative after the next census. So that issue is out there. Whether it will ever get decided -- it has never been decided by the Supreme Court. We’ll have to see what happens in the future.

 

Wesley Hodges:  Thank you so much, caller. Looks like we are approaching the end of our time, so I do want to take a moment and turn the mic back to Professor Baker and Ken. Do you have any closing thoughts for us on the case or from the discussion here today? Professor Baker, let’s start with you.

 

Dr. John S. Baker:  Well, since I talked about this case three times, I think I’m pretty much talked out. I hope that Ken is correct in terms of his prediction. I’m hopeful but I'm not willing at this point to bet on it.

 

Wesley Hodges:  Thank you. And Ken, do you have any closing thoughts for us?

 

Kenneth A. Klukowski:  I guess I’ll just make a broader observation. And this piggybacks on something that John said, and that is, for me to put it in different terms, it seems like some federal judges are just part of the #resistance movement. There has been policy after policy where there has been either -- either you infer that the court is presuming bad faith or sometimes the court is explicit about it: individual district judges laying down nationwide injunctions far broader than necessary to provide complete relief to the plaintiffs who brought the decision. These cases often brought in districts where the plaintiffs believe they are going to have a sympathetic ear at the U.S. Court of Appeals, leaving a scenario where no one expects President Trump or his administration to win on an issue before the Supreme Court level, an issue where he may have been right on the law all along.

 

Now the first big example that everyone remembers is Trump v. Hawaii with the travel ban. But we’re seeing it with any number of policy issues. And I really see this census case as just another specimen in that trend – a rather unfortunate trend.

 

Wesley Hodges:  Well, thank you so much, Ken and Professor Baker. Seeing as our time is up, I do want to let everyone know that on behalf of The Federalist Society, I want to thank our experts for the benefit of their very valuable time and expertise today. We welcome all listener feedback by email at [email protected]. Thank you all for joining us for the conversation today. This call is now adjourned.

 

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