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Against the objections of his own Census Bureau, Secretary of Commerce Wilbur Ross railroaded adding a question about citizenship status to the United States census.  Today the United States District Court of the Southern District of New York struck down that addition on grounds it violated the Administrative Procedures Act (APA), as the decision was arbitrary and capricious and violated laws requiring notice to Congress of changes to the content in the Census form. Read the decision here.

But the judge went quite a bit further.  The judge rather strongly suggested Secretary Ross lied to Congress, a felony.

The Arbitrary And Capricious Nature Of The Decision To Add The Census Question

In language widely quoted in the media, Judge Jesse Furman spelled out the arbitrary and capricious nature of Ross’s decision to add a question to the United States Census questionnaire asking if the respondent is a United States citizen (citations omitted).

the Court concludes on the merits that Secretary Ross violated the APA in multiple independent ways. Most blatantly, Secretary Ross ignored, and violated, a statute that requires him, in circumstances like those here, to collect data through the acquisition and use of “administrative records” instead of through “direct inquiries” on a survey such as the census.  Additionally, Secretary Ross’s decision to add a citizenship question was “arbitrary and capricious” on its own terms: He failed to consider several important aspects of the problem; alternately ignored, cherry-picked, or badly misconstrued the evidence in the record before him; acted irrationally both in light of that evidence and his own stated decisional criteria; and failed to justify significant departures from past policies and practices — a veritable smorgasbord of classic, clear-cut APA violations. On top of that, Secretary Ross acted without observing procedures required by law, including a statute requiring that he notify Congress of the subjects planned for any census at least three years in advance. And finally, the evidence establishes that Secretary Ross’s stated rationale, to promote VRA enforcement, was pretextual — in other words, that he announced his decision in a manner that concealed its true basis rather than explaining it, as the APA required him to do. Notably, the Court reaches all of those conclusions based exclusively on the materials in the official “Administrative Record” — that is, the record of materials collected and submitted by Defendants that Secretary Ross allegedly considered,directly or indirectly, prior to making his decision. Looking beyond the Administrative Record merely confirms the Court’s conclusions and illustrates how egregious the APA violations were . . .

the Court concludes that Secretary Ross’s decision to add the citizenship question to the 2020 census questionnaire, while not inconsistent with the Constitution, violated the APA in several respects. Those violations are no mere trifles.  The fair and orderly administration of the census is one of the Secretary of Commerce’s most important duties, as it is critical that the public have “confidence in the integrity of the process.” . . . In arriving at his decision as he did, Secretary Ross violated the law. And in doing so with respect to the census — “one of the most critical constitutional functions ourFederal Government performs,” and a “mainstay of our democracy,”  — Secretary Ross violated the public trust.

For over 20 years I made a living proving Federal government agencies acted arbitrarily and capriciously.  That’s a tough standard to prove, as courts generally defer to government agency discretion.  Still, I often met that standard, though I don’t think I ever got the kind of strong language above where the court suggested the Secretary of the Agency violated the public trust. As discussed below, the judge’s language would only get stronger.

The Discovery Dispute

Note the part of the above quote where the judge says:

the Court reaches all of those conclusions based exclusively on the materials in the official “Administrative Record” — that is, the record of materials collected and submitted by Defendants that Secretary Ross allegedly considered,directly or indirectly, prior to making his decision. Looking beyond the Administrative Record merely confirms the Court’s conclusions and illustrates how egregious the APA violations were.

That provides a hint at something deeper and more nefarious going on.  Normally, review of administrative decisions are just on the “administrative record,” the record created by the agency in the decision making process.  In this case, the Plaintiffs requested, and the court took the unusual step of granting, additional discovery beyond the administrative record provided by the agency.  The agency objected to that, and even after limited response to the discovery, managed to foreclose additional discovery (to include deposition of Ross) until after Supreme Court review.  The government/defendant then demanded the additional discovery, beyond the Administrative Record, not be considered in the opinion.

As reflected in the quote above, the court states it did not consider the beyond Administrative Record discovery in making the decision.  However, the court does spell out what that discovery found, which certainly makes it clear why the government did not want to release it and did not want it considered.

That additional discovery lays out a conspiracy between Secretary Ross of the Commerce Department, and Attorney General Sessions, to fabricate a sham rationale for adding the citizenship question.  Ross then lied about that conspiracy when questioned about it in testimony before Congress.

The “Gary Letter” As The Sham Basis For Adding The Citizenship Question

In his public memo ordering the citizenship question be added, and justifying the basis for doing so, Ross claimed he was adding the question because of a request from the Department of Justice to do so.  The letter, purportedly written by a DOJ mid-level official named Arthur Gary, was actually ghostwritten by Acting Assistant Attorney General Gore (a Trump political appointee).  In it the DOJ formally requested Census Bureau to add the citizenship question, claiming the DOJ needed the data to assist in the enforcement of the Voters Rights Act.

Notably, the Census Bureau rejected the request, fearing the question would compromise the critical Constitutionally mandated census enumeration process by depressing census response rates, and noting that other sources of data could better fulfill the DOJ needs.

Commerce Secretary Ross overruled his own Census Bureau, directing the citizenship question be added.  Ross presented the DOJ request as the genesis for consideration of the issue.  Ross wrote that “following receipt” of the Gary Letter he “set out to take a hard look at the request and ensure that he considered all facts and data relevant to the question so that he could make an informed decision on how to respond.”  As explained below, while Ross claimed the Gary Letter was the genesis for his examination of the question, in fact, the genesis of the Gary Letter was Ross himself.

The Off-The-Official-Record Discovery Lays Out A Stunning Conspiracy

Ross’s public record, the Administrative Record, lays out a process where Ross began sober, fair-minded consideration of a request from the DOJ, for an issue he had not thought of before. The additional discovery found quite the opposite.  Ross sought to add the question within a month of assuming the job of Commerce Secretary.  He hatched the idea with then-White House Chief of Staff Steve Bannon and Kris Kobach of Trump’s notorious (and ill-fated) voter fraud investigation panel.

Desperate to justify what he had already decided to do, he asked his lower level people to get the DOJ to request such a question be added to the census. His lower level people, contacting lower level people at DOJ, encountered a problem.  The DOJ said they really didn’t need the question asked, they could get better data from another source.  Frustrated, Ross took his case to the top.  He asked Attorney General Jeff Sessions to have the DOJ write a letter formally asking the Census Bureau to add the citizenship question.

Sessions happily obliged, directing another political appointee to write the letter in the name of a non-political appointee, all to give the false impression of a non-partisan request.  When members of the Census Bureau pushed back, asking DOJ counterparts to explain the rationale for the request, Sessions ordered DOJ personnel to not talk to the Census Bureau.

Before providing a more detailed account of the events, the court provided this summary:

the evidence shows that shortly after his confirmation as Secretary of Commerce, Secretary Ross discussed the addition of the citizenship question with then-White House advisor Steve Bannon, among others; that Secretary Ross wanted to add the question to the 2020 census prior to, and independent of, DOJ’s December 12, 2017 request; that the Secretary and his aides pursued that goal vigorously for almost a year, with no apparent interest in promoting more robust enforcement of the VRA; that, believing they needed another agency to request and justify a need for the question, Secretary Ross and his aides worked hard to generate such a request for the citizenship question from DOJ; that these efforts included a direct intervention by Secretary Ross with Attorney General Sessions; and that these efforts ultimately succeeded, resulting in DOJ’s request for a citizenship question.

Put simply, the rationale that the question was added at the DOJ’s request was a sham. Rather, Ross, his decision already made, asked the DOJ to make such a request.  It took arm twisting, but a reluctant DOJ did, operating outside of usual channels to funnel the request to political operatives, then hiding that they did so.

Ross Lies To Congress

Lying to the American public regarding your rationale for a decision is certainly problematic, and is rather clear evidence of arbitrary and capricious decision making, but at least it is not a crime.  Lying to Congress is a crime, and Ross upped the ante by doing that as well.  I’ll just quote from the judge’s decision here (again removing citations):

In sworn testimony before Congress around the same time, Secretary Ross repeated that the decision to add a citizenship question began with the Gary Letter and denied White House involvement in the decision and discussions leading to the decision.

Before the House Appropriations Committee on March 20, 2018, for example, Representative José Serrano asked Secretary Ross whether “the President or anyone else in the White House directed him to add this or a similar question to the 2020 census.”  Secretary Ross responded that the Department of Commerce was “responding solely to Department of Justice’s request.” Later in the same hearing, Representative Grace Meng asked Secretary Ross whether “the President or anyone in the White House discussed with you or anyone on your team about adding this citizenship question.” Secretary Ross answered: “I am not aware of any such.”

Secretary Ross testified similarly before the House Ways and Means Committee on March 22, 2018. Most relevant here, Representative Judy Chu asked if Secretary Ross could tell her “whether the Department of Commerce plans to include the citizenship question in the 2020 Census.”  Secretary Ross responded that the “Department of Justice, as you know, initiated the request for inclusion of the citizenship question” to the decennial census.

Finally, before the Senate Subcommittee on Commerce, Justice, Science, and Related Agencies on May 10, 2018, Secretary Ross testified again that DOJ had initiated the request. Senator Patrick Leahy questioned whether a citizenship question was actually “necessary to enforce the Voting Rights Act.” He asked Secretary Ross: “[W]hy this sudden interest in that when the department that’s supposed to enforce violations doesn’t see any problems?” Secretary Ross responded: “Well, the Justice Department is the one who made the request of us.”

As the judge concluded regarding this Congressional testimony:

Secretary Ross intended to convey the impression that the Gary Letter — and the Gary Letter alone — prompted consideration of whether to add a citizenship question to the census; that neither he nor anyone else at the Commerce Department prompted DOJ’s request; and that he had not discussed the matter with White House officials before 2018.

That intended conveyance is false at every turn.  The Gary Letter itself was prompted by Ross’s request to the Attorney General and Ross discussed the matter with White House Chief of Staff Steve Bannon and Kris Kobach in early 2017.  Indeed, the court found that Ross had made his decision to add the question “months before” receiving the Gary Letter that he asked for.

The court would go on to list findings reflecting the levels of deception involved, including,

  • The curated and highly sanitized nature of the Administrative Record initially filed.
  • The lack of any record (even reconstructed) of various important steps along the way (despite, again, the stated intent to be diligent in preparing the administrative record), including but not limited to Secretary Ross’s early discussions with other officials regarding the addition of the citizenship question.
  • The misleading, if not false, statements in the Ross Memo, including but not limited to its suggestion that Secretary Ross began considering the issue only after receiving the Gary Letter in December 2017.
  • Secretary Ross’s “admittedly imprecise,” . . . if not false, testimony before Congress, including but not limited to his statements that he was “not aware of any” discussions with “anyone in the White House” (despite his own conversation with Bannon), that DOJ “initiated the request for inclusion of the citizenship question” (despite the fact that it was plainly initiated by the Commerce Department), and that he was responding “solely” to DOJ’s request (despite the fact that it was he who had generated that request in the first place).

With all that, the judge concludes:

Those acts and statements are not the transparent acts and statements one would expect from government officials who have decided, for bona fide and defensible reasons, to change policy.  Nor are they the acts and statements of government officials who are merely trying to cut through red tape. Instead, they are the acts and statements of officials with something to hide.

What To Do If You Are Ross.

Don’t appeal and let this die.  It’s bad enough a District Court judge said this stuff.  It’s monumentally worse if you appeal and the Supreme Court endorses the suggestion that you lied to Congress. How can adding this one stupid question to the census possibly be worth that risk?

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This is a Creative Commons article. The original version of this article appeared here.


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