Erin Hustings is legislative counsel for the National Association of Latino Elected and Appointed Officials Educational Fund.

When the Supreme Court reviews the Census Bureau’s proposed citizenship question, it will face the issue after extraordinary gaps in procedure. Because of deadlines for printing the census forms and other preparations, litigants have had to forgo appeals-court review and approach the justices without the benefit of the views of the U.S. Courts of Appeals for the 2nd and 9th Circuits.

Something else very important will be missing. In a case still awaiting the decision of Judge George Hazel of the U.S. District Court for the District of Maryland, the plaintiffs have advanced a claim that the Supreme Court will not rule upon — that racial animus motivated the decision to add the question, and it therefore violates the Fifth and 14th Amendments’ equal protection guarantee.

Though district courts in New York and California did not rule on Fifth and 14th Amendment claims, they did reach conclusions about the intent behind the Census Bureau’s and Commerce Department’s actions. Most recently, Judge Richard Seeborg of the U.S. District Court for the Northern District of California found that Voting Rights Act enforcement was “nothing more than a pretext designed to provide cover for the Secretary’s unexplained desire to add the citizenship question to the Census.” Although he could see that the stated rationale did not hold up under scrutiny, Seeborg did not opine about the actual motivation of administration officials in pursuing addition of the question through delays and around barriers over the course of several months.

Nonetheless, the case of the citizenship question helps to illustrate the paramount importance of federal courts’ addressing motivation and assigning legal significance to unsupported, inexplicable decision-making by government officials and agencies.

There is no end in sight to administration actions and decisions that have disproportionately and negatively affected underrepresented communities, which have suffered the indignities of discrimination throughout American history. Observers can trace a pattern in the administration’s “Muslim Ban” in Executive Order 13769; the termination of Deferred Action for Childhood Arrivals (DACA) and Temporary Protected Status or Deferred Enforced Departure for Salvadorans, Nicaraguans, Hondurans, Haitians, Sudanese, Nepalis and Liberians; and the prohibition on transgender military servicemembers. The pattern is sustained in lower-profile activities including rescission of guidance on affirmative action, revocation of provisions requiring government contractors to pay women fairly, and direction to agencies to find ways to limit or eliminate liability based on disparate impact on a disfavored group. By repeatedly singling out religious, national-origin, gender, and racial and ethnic minorities for exclusion or pointed non-protection, the Trump administration has opened itself to charges of acting with unconstitutional discriminatory intent.

Such intent, however, is difficult for jurisprudence to define and circumscribe, and litigation of the issue in the past decade has yielded uneven results. For example, when a member of the Colorado Civil Rights Commission compared religious objections against baking a cake for a same-sex wedding to religious justifications of slavery and the Holocaust, the Supreme Court identified an impermissible hostility to religion in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission. However, the same Supreme Court rejected the argument that statements by President Donald Trump and his advisors about the administration’s “Muslim Ban” showed religious animus, in Trump v. Hawaii. Both decisions overturned contrary lower-court determinations.

In another example of disagreement over the meaning of evidence of intentional discrimination, Judge Nicholas Garaufis of the U.S. District Court for the Eastern District of New York rejected a motion to dismiss an equal protection claim regarding the termination of the DACA program, concluding that derogatory presidential statements about Latinos and Mexicans were “sufficiently racially charged, recurring, and troubling as to raise a plausible inference that the decision to end the DACA program was substantially motivated by discriminatory animus.” On the other hand, Judge Roger Titus of the district of Maryland wrote, in CASA de Maryland v. Department of Homeland Security, dismissing a similar equal protection claim at summary judgment, that the decision to terminate the program did not “target … a subset of the immigrant population, and … [was not] derived on a racial animus…The Court rejects Plaintiffs’ reliance on the President’s misguided, inconsistent, and occasionally irrational comments made to the media to establish an ulterior motive.”

Observers would hope that, if the Supreme Court had an equal protection claim against the census citizenship question before it, it would recognize and comment upon some hallmarks of intentional discrimination in this case. In so doing, the court could help clarify the legal import of the surprising official words and actions that have become an issue in litigation of so many diverse matters.

First, the decision to add a census citizenship question fits squarely within a pattern of actions that have intimidated the target at hand: immigrants of color. Resources spent on immigration enforcement have increased exponentially as safeguards and discretion have been dismantled. To cite one of many examples, in 2018, then-Attorney General Jeff Sessions overturned longstanding immigration legal precedent to declare that people no longer qualified for asylum if they were fleeing domestic or gang violence that their home governments could not protect them from. Numerous decisions restraining immigration generally, and immigration from Latin America, Africa and Asia in particular, created a context of fear that experts in citizenship-question trials in New York, California and Maryland cited as a key reason for potentially serious harm from the question. Otherwise put, people are themselves strong proof that officials across administrative bodies are acting in consistent and repetitive ways – that is, with discriminatory intent – to single out immigrants of color for scrutiny, disapproval and prosecution. Certainly, immigrants of color have reasonably concluded that discrimination is occurring. The Census Bureau’s own 2018 focus groups, for example, yielded the observation that “even when presented with the Census Bureau’s promise of confidentiality, participants were suspicious that the promise would not be kept. Participants believed that the government will use and share individual-level rather than aggregate-level data.” One Spanish-speaking participant commented, “[Latinos will not participate] out of fear … [there] is practically a hunt [for us].”

Second, lies and obfuscation have pervaded the Commerce Department’s purported justification for its actions around the citizenship question. Appointed officials went to extraordinary lengths to conceal the details of the deliberations, which points strongly to the existence of embarrassing facts to hide, and discriminatory purpose is the most logical candidate. The records of the citizenship trials, and the decisions issued thus far, are rife with examples of deliberate less-than-truths. In one compelling, illustrative case, Commerce Department officials asked questions about the bureau’s initial analysis of the December 2017 letter requesting citizenship data. One of these queries sought information about the usual process for making changes to the decennial census questionnaire. Census Bureau Chief Scientist Dr. John Abowd and Acting Director Ron Jarmin subsequently testified that neither they nor, to their knowledge, any other Census Bureau employee had written or reviewed the answer as it appeared in the Commerce Department’s initial submission of documents for the record. Their testimony revealed that someone in a supervisory position had replaced the Census Bureau’s expert advice with substantially different information, then allowed the concocted answer to be presented as the work product of career census staff.

Third, official actions – like adoption of the citizenship question – that appear logically incomprehensible may only make sense in light of discriminatory intent. Courts can and should infer this intent when a pattern or practice reveals an inclination to single out disfavored populations, and when a decision that hurts a disfavored population has no other legitimate explanation. District courts appear to have found the justifications for the citizenship question that relate to the VRA especially unconvincing, given that the Department of Justice and private plaintiffs have successfully enforced the VRA for 54 years without such block-level citizenship data, and that the Census Bureau clearly and repeatedly told decisionmakers that they could get more accurate information at less cost from administrative data. The California court came closer to following this thought to its logical conclusion, noting, “Secretary Ross’s senior officials … all claim, rather implausibly, to be ignorant of why Secretary Ross wanted the citizenship question on the 2020 Census,” and observing that Commerce Department Director of Policy Earl Comstock testified that he did not “need to know what [the Secretary’s] rationale might be, because it may or may not be one that is … legally-valid.”

The absence of a credible rationale is not just the sign of arbitrary decision-making. In a high-stakes action that was always destined for intensive public scrutiny and likely court review, powerful officials would have offered plausible justifications if they could have. They would have stated their real purpose if it were defensible.

The courts should recognize that the incomprehensibility of the administration’s actions in Department of Commerce v. New York is evidence of unconstitutional discriminatory purpose, which, given the pattern established over the course of 2017 and 2018, is likely to recur again and again until the courts give it its true name and provide proper redress.

Posted in Department of Commerce v. New York, Symposium before the oral argument in Department of Commerce v. New York, Featured

Recommended Citation: Erin Hustings, Symposium: Unfinished business — SCOTUS and the citizenship question, SCOTUSblog (Apr. 3, 2019, 2:51 PM), https://www.scotusblog.com/2019/04/symposium-unfinished-business-scotus-and-the-citizenship-question/