Arbitrary and Capricious – the President Must Act Rationally

By Schonauer Law on Jul 11, 2019 at 05:45 PM in Law News
2020 census and the citizenship question.

Arbitrary and Capricious – the President Must Act Rationally

“And unlike a typical case [...] here the VRA enforcement rationale […] seems to have been contrived.” Chief Justice Roberts, DEPARTMENT OF COMMERCE, ET AL., PETITIONERS v. NEW YORK, ET AL.

The Constitution and the Law of Congress grant power to the president of the United States and the Judiciary.  The president executes the laws of the land, hence the name executive branch.  President Trump must exercise his authority after considering relevant factors and without a clear error in judgment.

Congress granted the courts the authority to "set aside agency action ... found to be ... arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A) (1988.  If the president’s authority is challenged in court, a court must find a "rational connection between the facts found and the choice made."

The Citizenship Question - History

The Constitution requires a count of the population of the United States every 10 years.  The population count is used to allocate federal funds to the States, draw electoral districts, and a means of collecting demographic information for a variety of purposes.  How the census is done is determined by Congress.  (Art. I, §2, cl. 3; Amdt. 14, §2 of the Constitution.)

Congress delegated to the Secretary of Commerce the task of conducting the decennial census “in such form and content as he may determine.” 13 U. S. C. §141(a).

Historically, there have been 23 censuses since 1790 and just about all of those have asked at least part of the population of the United States about either their citizenship or place of birth.  In 1950, the question was asked to every household.  Between 1960 and 2000, not all households were asked the question.  In 2010, the citizenship question was removed from the census and placed on the American Community Survey sent every year to a small sample of households.

In preparation of the 2020 census, the Secretary of Commerce, Wilbur Ross, announced his intention to reinstate a citizenship question.  Plaintiffs filed suit in Federal District Court in New York, challenging the decision on several grounds.  Plaintiffs included 18 States, the District of Columbia, various counties and cities, and the United States Conference of Mayors.  Plaintiffs alleged the Secretary’s decision violated the Enumeration Clause of the Constitution and the requirements of the Administrative Procedure Act that demand the president and agencies not act arbitrarily, capriciously, abuse his or its discretion, or otherwise act contrary to the law.  In 2018, a District Court ruled that the Secretary’s action was arbitrary and capricious, based on a pretextual rationale, and violated certain provisions of the Census Act.

On appeal, the Supreme Court rule that the justification that the government offered was just a pretext and seemed to have been contrived.  “[E]vidence showed that the Secretary was determined to reinstate a citizenship question from the time he entered office; instructed his staff to make it happen ...”  In other words, the Secretary wanted to act and asked his staff to build the reason why, a backwards approach that produces arbitrary and capricious decision making in violation of the Administrative Procedure Act.

On July 2, 2019, Kate Bailey, an attorney with the Department of Justice, wrote in an email, “We can confirm that the decision has been made to print the 2020 Decennial Census questionnaire without a citizenship question, and that the printer has been instructed to begin the printing process.”  A spokesperson for the Department of Justice, Kelly Laco, confirmed that the question will not appear on the census.

Executive Order

President Trump tweeted that he would address the Citizenship question Thursday morning.  Earlier, the president signaled he was considering using an executive order to include the question.  It is now reported that President Trump will announce that executive action at a news conference this afternoon.

A problem is that Government lawyers repeatedly informed the justices of the Supreme Court the clock was ticking and asked the court to resolve the case quickly, because the census questionnaire must be finalized before the end of June.  A decision by the president to act via executive order will raise the question of whether government lawyers knowingly made false statement of fact to the Supreme Court or fail to correct a false statement of material fact previously made to the court by a Government Lawyer. (Rule 3.3: Candor Toward the Tribunal.)



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"So numerous indeed and so powerful are the causes which serve to give a false bias to the judgment, that we, upon many occasions, see wise and good men on the wrong as well as on the right side of questions of the first magnitude to society."

“Publius” October 17, 1787.