On March 26, 2018, the Secretary of Commerce ordered that the 2020 Census add a question about citizenship 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 non-profit 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. The plaintiffs alleged that 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 (APA). 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 New York v. U.S. Department of Commerce, which was a case filed by state actors and brought all the same claims except for an Equal Protection Clause violation. On June 13, 2018, the cases were informally consolidated and coordinated for purposes of scheduling and case management. The cases were officially consolidated on September 14, 2018.

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; 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.

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.

From July to September 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. Generally, the court found that the "public interest weighs heavily in favor of [deposing Secretary Wilbur Ross and other U.S. officials]." 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 defendants appealed the Second Circuit's refusal to stay discovery to the Supreme Court. On October 23, 2018, the Supreme Court granted the application for stay with respect to Secretary Ross's deposition but denied it with respect to other discovery matters.

On January 15, 2019, following a contentious trial, the district court ruled to vacate the Department of Commerce's decision to include a question about citizenship on the census. While the court reasoned that Commerce did not commit a constitutional harm when adding the question of citizenship to the census, the court found that the question did violate Secretary Ross's statutory limits on power as well as the APA. Thus, the court enjoined the defendants from adding a citizenship question to the census.

Two days later, the defendants appealed to the Second Circuit. Before a judgment could be entered there, the defendants petitioned for a writ of certiorari from the Supreme Court on January 25, 2019. This was justified under the pretense that details concerning the census needed to be resolved prior to July 2019 in order to send the survey out on time.

On June 27, 2019, the Supreme Court announced a decision holding that adding a citizenship question was within the limits of the Secretary's power. However, the Court emphasized that such actions were reviewable under the APA and that agency heads needed to offer "reasoned explanation" and "genuine justifications" for their actions. Here, the Court concluded that Secretary Ross did not genuinely aim to collect citizenship data for the purposes of enforcing the Voting Rights Act; rather, the Court found that explanation to merely be a pretextual justification that thus invalidated the agency action. 139 S. Ct. 2551.

Following the Supreme Court's ruling, the Trump Administration attempted to find other ways to include a citizenship question on the census, even after the deadline date. However, on July 16, 2019, the district court permanently enjoined the administration from including a citizenship question on the census.

Following the permanent injunction, the plaintiffs filed a motion for sanctions, alleging that the defendants deliberately concealed information showing Secretary Ross's ulterior motives for including the citizenship question. As a result, the court granted the motion for sanctions in part on May 21, 2020, and ordered the defendants to reimburse some fees and costs associated with the deliberate obfuscation.

The court retained jurisdiction to enforce the terms of this injunction until December 31, 2020, when the census results were due to be processed and sent to the President. The case has now ended.

Chelsea Rinnig - 08/29/2018
Erica Lignell - 03/14/2019
John Duffield - 08/03/2021
Matthew Feng - 08/30/2021


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