The Able Judge Jesse Furman Rules Mr. Ross' Census "Citizenship" Question... Unlawful, Under The APA.

This is very good (if rather widely expected) news for those of us who believe Secretary Ross is acting with invidious racial and ethnic animus -- when he tries to aid Trump's DoJ, in "finding" undocumented workers, via the coming 2020 US Census. Now that will never happen, in all likelihood.

Based on half-century old amendments to the VRA, the sharing, and use, of the Census data collected -- with law enforcement -- has been essentially prohibited by Congress, to ensure that the most accurate data is obtained, for apportionment purposes. And essentially any future power to share such data, has been reserved by Congress, to Congress. Thus, in Manhattan, USDC Judge Jesse Furman correctly ruled (in a 277 page PDF opinion) this morning:

. . .[T]he last time that the census asked every respondent about citizenship was sixty-nine years ago, in 1950. Notably, that is before the VRA was enacted in 1965. In other words, for all fifty-four years that the VRA has existed, the federal government has never had a “hard-count” tally of the number of citizens in the country. Instead, consistent with the requirement to use statistical sampling techniques “if . . . feasible” for everything other than the constitutionally mandated “actual Enumeration,” see 13 U.S.C. § 195, the federal government has extrapolated from citizenship data collected from a subset of the population to model data for the population as a whole, see WILLIAMS, THE 2010 DECENNIAL CENSUS 3.

Since 1950, the Census Bureau and former Census Bureau officials have consistently opposed periodic proposals to resume asking a citizenship question of every census respondent. . . .

[T]here is no basis in the record to conclude that Secretary Ross “actually believe[d]” the rationale he put forward, Defs.’ PostTrial Br. 75, ¶ 49, and a solid basis to conclude that he did not. And while there may well be, as Defendants assert, “myriad” other “legitimate reasons more-precise citizenship data could prove useful to both the federal and state governments,” Docket No. 412, at 30; accord Defs.’ PostTrial Br. 65, ¶ 441, the fact of the matter is that Secretary Ross did not articulate even one. To the contrary, he cited one and only one rationale — DOJ’s request for more granular CVAP data to enhance VRA enforcement — in his decision memorandum, and he affirmatively testified before Congress, under oath, that DOJ’s request was the “sole[]” reason for his decision. See Hearings Before Subcomm. on Commerce, Justice, Science, and Related Agencies of the H. Comm. on Appropriations, 115th Cong. 15 (2018) (admitted as an audio file at PX-491).

In sum, the evidence in the Administrative Record and the trial record, considered separately or together, establishes that the sole rationale Secretary Ross articulated for his decision — that a citizenship question is needed to enhance DOJ’s VRA enforcement efforts — was pretextual. Because Secretary Ross’s stated rationale was not his actual rationale, he did not comply with the APA’s requirement that he “disclose the basis of [his]” decision. Burlington Truck Lines, Inc., 371 U.S at 167-68 (internal quotation marks omitted). As Defendants themselves have conceded, see May 9 Conf. Tr. 15, that by itself entitles Plaintiffs to relief under the APA. See, e.g., Woods Petroleum Corp., 18 F.3d at 859-60; Latecoere Int’l, Inc. v. U.S. Dep’t of the Navy, 19 F.3d 1342, 1356 (11th Cir. 1994) (noting that “proof of subjective bad faith” by decision-makers, including “predetermining” the awardee of a government contract, calls for relief under the APA). . . .

Now you know -- onward, with a spring in my step -- to the trains. Smile.

नमस्ते