On March 26, 2018, the Secretary of Commerce ordered that the 2020 Census include a question about citizenship of all U.S. residents for the first time since 1950. On June 6, 2018, the New York Immigration Coalition, Casa, the American-Arab Anti-Discrimination Committee, the ADC Research Institute, and Make the Road New York—all advocacy and policy organizations—filed this action against the Department of Commerce and Bureau of Census in response. Represented by private counsel, the New York Civil Liberties Union, and the ACLU, the plaintiffs alleged that the question was a form of intentional discrimination directed at immigrant community of color to deter them from participation in the Census. Such underreporting would subsequently affect the allocation of federal resources to these communities and their political representation in federal and state government. They claimed that the question was motivated by discriminatory animus and the Trump Administration's hostility toward people of color and immigrant communities. Any rationale stated was blatantly pretextual: the intentional discrimination would violate the Fifth and Fourteenth Amendments equal protection and due process and the arbitrary and unconstitutional federal action would violate the Administrative Procedure Act. The plaintiffs sought declaratory relief, a preliminary and permanent injunction, and attorneys' fees and costs on behalf of their members, as well as for the organizations themselves for the funding they receive as the result of Census data.

The case was assigned to Judge Jesse M. Furman as related to States v. U.S. Department of Commerce. On June 13, 2018 the cases were informally consolidated and coordinated for purposes of scheduling and case management.

On June 29, 2018 the Department of Commerce filed a motion to dismiss that the plaintiff organizations lacked standing to sue on behalf of their membership. Moreover, they claimed that the plaintiffs failed to state an Enumeration Clause claim or an Equal Protection claim. On July 26, the court granted in part and denied in part the motion to dismiss. The court held that the Secretary of the Department of Commerce did not have a blanket protection from judicial review; that rather, the purpose of the judiciary is exactly to review the conduct of other political branches. The court concluded that under the Enumeration Clause, the question was not whether the Secretary exercised his authority in a discriminatory manner, but whether he had the authority to add a question about citizenship to the Census. Those questions about his authority to exercise executive power were dismissed. However, the court found that the plaintiffs sufficiently alleged a plausible Equal Protection claim under the Due Process clause. The case was allowed to proceed to discovery, though the court noted that the Enumeration Clause and Census Act granted the Secretary of Commerce broad authority over the Census.

In the July and August of 2018, the parties engaged in a slew of discovery disputes. The court granted on August 17, 2018 the plaintiffs’ request to depose the Acting Assistant Attorney General for Civil Rights. The court dismissed as frivolous the defendants’ motion to stay discovery altogether on September 7. The court found that the motion to stay deposition of the Acting Assistant Attorney General was a closer question but still dismissed it. The Second Circuit denied the defendants’ writ of mandamus to halt discovery in the cases, finding the district court did not clearly abuse its discretion in ordering additional discovery and the deposition. 2018 WL 6006904.

The plaintiffs previously sought leave to file an amended complaint in August based on newly acquired discovery and false testimony. They requested to add the Department of Justice, the Attorney General, and the Acting Assistant Attorney General to the complaint. The court denied the plaintiffs’ motion on September 7, finding that the Administrative Procedure Act and Due Process claims against the Department of Justice would fail. The court similarly denied the plaintiffs’ motion to add two organizations that work on behalf of communities in Florida as additional plaintiffs.

The court ordered that the two cases be formally consolidated on September 14, 2018 under this case number.

The defendants filed another application for a stay of discovery in late September, seeking to stay depositions of the Secretary of Commerce and the Acting Assistant Attorney General for the Civil Rights Division. The court labeled this motion little more “than a pro forma box-checking exercise for purposes of seeking relief in the Supreme Court.” The court referenced its previous discovery opinions and expressed frustration in denying this motion. The Second Circuit similarly found the request for a stay unwarranted. The Supreme Court denied the request for a stay of discovery on October 5, provided the Second Circuit allow the parties time to seek relief before the depositions. The Second Circuit denied the writ for a mandamus on October 9, and the next day temporarily stayed the depositions for thirty-six hours. 2018 WL 6006885.

Justice Gorsuch, writing for the Supreme Court, granted a stay of the Secretary’s deposition, all extra-record discovery, but denied the stay for the Acting Assistant Attorney General’s deposition. 139 S.Ct. 16. He noted that the plaintiffs’ request for extra-record discovery required a strong showing that the Secretary acted in bad faith, and called the accusation “highly unusual, to say the least.” However, the Court denied the application for a stay without explanation on November 2. 139 S.Ct. 452. Justices Thomas, Alito, and Gorsuch would have granted the application.

The district court issued its findings of fact and conclusions of law and its final judgment on January 15, 2019. 351 F.Supp.3d 502. The court held that most, if not all, plaintiffs had standing. The court found for the defendants on the Enumeration Clause and Due Process claims. The court found the Secretary’s decision pretextual, but was unable to find that the decision was a pretext for impermissible discrimination. On this, the plaintiffs failed to carry their burden.

The plaintiffs did, however, win on the claims under the Administrative Procedure Act. The most blatant violation was the Secretary’s decision to choose “direct inquiries” to gather the relevant information rather than administrative records, as the statute requires in these circumstances. His choice was arbitrary and capricious in that he failed to consider important aspects of the problem and ignored, cherry-picked, or badly misconstrued the evidence. The court found “a veritable smorgasbord of classic, clear-cut APA violations.” Finally, the court found the Secretary’s rationale to be pretextual.

The court thus vacated the Secretary’s decision to add a question concerning citizenship status, and remanded to the Secretary for further action not inconsistent with the Court’s Orders. The court permanently enjoined the defendants from adding the question to the census questionnaire, unless the Secretary had exhausted his ability to use administrative records to obtain the information he sought, or unless the Secretary submitted a report to congressional committees concerning his proposed changes to the questionnaire.

The defendants appealed the decision two days later. The Second Circuit granted certiorari on February 15. 2019 WL 331100. As of March 14, 2019, there has been no further activity, and arguments before the Second Circuit are set for the second week of April.

Chelsea Rinnig - 08/29/2018
Erica Lignell - 03/14/2019


compress summary