Department of Commerce v. New York
Whether the Secretary of Commerce's decision to add a citizenship question to the 2020 Census was lawful under the Enumeration Clause of the Constitution and the Administrative Procedure Act, or whether it was arbitrary, capricious, and based on a pretextual rationale.
The Decision
5-4 decision · Opinion by John G. Roberts Jr. · 2019
Majority Opinion— John G. Roberts Jr.concurring ↓dissent ↓
In a fractured but consequential decision, the Supreme Court ruled 5–4 that the Secretary's stated reason for adding the citizenship question — enforcement of the Voting Rights Act — was pretextual, and therefore the decision could not stand. Chief Justice John Roberts wrote the opinion, delivering different parts of the ruling with different coalitions of justices.
On several threshold questions, a five-justice majority of Roberts and the four more conservative justices (Thomas, Alito, Gorsuch, and Kavanaugh) ruled in the government's favor. They held that the Enumeration Clause does not prohibit the government from asking questions beyond a simple headcount, that the Secretary has broad statutory authority under the Census Act to determine the content of the questionnaire, and that the decision to add a citizenship question was not substantively arbitrary and capricious on its merits — meaning the policy rationale, if genuine, could have been a lawful basis for the decision.
However, on the decisive issue, Chief Justice Roberts parted from his conservative colleagues and joined the four liberal justices (Ginsburg, Breyer, Sotomayor, and Kagan) to hold that the VRA enforcement rationale was contrived after the fact. The Court found that the evidence in the record — including the timeline of events, internal communications, and the Secretary's own shifting explanations — told a story that did not match the official justification. Roberts wrote that the VRA rationale 'seems to have been contrived' and was 'more of a distraction' than a genuine explanation. He emphasized that even when an agency has broad discretion, the APA requires that the agency provide its actual reasons for acting, and courts are not required to accept explanations that are demonstrably pretextual.
The Court remanded the case to the lower court, effectively blocking the citizenship question from appearing on the 2020 Census because the printing deadline had nearly passed and the government could not offer a new, genuine rationale in time. The practical result was that the 2020 Census was conducted without a citizenship question. The decision established an important principle: judicial review under the APA is not merely a rubber stamp, and agencies cannot shield arbitrary decisions behind a facade of reasoned decision-making, no matter how broad their underlying authority.
Concurring Opinions
Justice Stephen Breyer, joined by Justices Ginsburg, Sotomayor, and Kagan, concurred with the judgment blocking the citizenship question but wrote separately to argue that the decision was also substantively arbitrary and capricious — not just pretextual — because the Secretary ignored the Census Bureau's expert conclusion that using existing administrative records would produce better citizenship data at lower cost and with less harm to overall Census accuracy.
Dissenting Opinions
Clarence Thomasjoined by Neil Gorsuch, Brett Kavanaugh
Justice Thomas argued that the majority improperly looked behind the Secretary's stated rationale to probe his subjective motivations. He contended that as long as the agency provided a facially reasonable explanation supported by the record, courts had no business playing detective about what 'really' motivated the decision.
- The APA requires courts to review whether an agency's stated rationale is reasonable, not to psychoanalyze the decision-maker's true motives — a standard that is unworkable and invites judges to substitute their policy preferences for those of the executive branch.
- The VRA enforcement rationale was reasonable on its face: the DOJ did request better citizenship data, and a citizenship question was a straightforward way to gather it, regardless of whether the idea originated with the Secretary or the DOJ.
- The majority's approach opens the door to judges invalidating any executive action by mining the administrative record for evidence of mixed motives, effectively creating an impossible standard for agency decision-making.
Samuel Alito
Justice Alito dissented separately, arguing that the Court should have reversed the lower court entirely. He contended that the Secretary's decision fell well within his broad statutory authority and that no further judicial inquiry into the decision-maker's mental processes was warranted.
- The Secretary of Commerce has virtually unreviewable discretion over Census content under the Census Act, and adding a citizenship question — which appeared on the Census for 130 years — was an unremarkable exercise of that power.
- The majority's pretext analysis was an unprecedented expansion of judicial power over executive policymaking that will invite endless litigation over the motivations behind routine government decisions.
Background & Facts
In early 2018, Secretary of Commerce Wilbur Ross announced that the 2020 decennial Census would include a question asking every household whether each resident was a United States citizen. A citizenship question had appeared on some form of the Census for most of American history, but it had not been included on the short-form questionnaire sent to every household since 1950. The Census Bureau's own experts warned that adding the question could significantly depress response rates among immigrant communities, ultimately making the population count less accurate — the opposite of the Census's constitutional purpose.
Secretary Ross publicly stated that he was adding the question at the request of the Department of Justice, which said it needed more granular citizenship data to better enforce Section 2 of the Voting Rights Act, a federal law that protects minority voting rights. However, internal documents and testimony revealed a more complicated backstory. Evidence showed that Secretary Ross had been interested in adding the citizenship question for months before the DOJ ever made its formal request, and that Commerce Department officials had actually prompted the DOJ to write the letter requesting the data in the first place. Critics alleged that the true motivation was political — that the question was designed to discourage participation by non-citizens and Hispanic communities, thereby shifting political power.
A coalition of state and local governments led by New York, along with civil rights organizations, sued in federal court, arguing that adding the question violated the Administrative Procedure Act (APA) — the federal law that governs how agencies make decisions — and the Constitution's Enumeration Clause, which requires an 'actual Enumeration' of the population every ten years. After a full bench trial, Judge Jesse Furman of the U.S. District Court for the Southern District of New York ruled against the government. He found that the Secretary's decision was arbitrary and capricious under the APA because the stated rationale — helping enforce the Voting Rights Act — was a post-hoc justification that did not reflect the real reasons behind the decision.
The government sought immediate Supreme Court review, bypassing the normal appeals process. Because the Census questionnaire had to be finalized and printed by a fast-approaching deadline, the Supreme Court agreed to hear the case on an expedited schedule during its October 2018 term, with arguments held in April 2019.
The Arguments
The Secretary of Commerce has broad statutory authority to determine the questions asked on the Census, and his decision to add a citizenship question was a reasonable exercise of that discretion. The stated rationale — improving enforcement of the Voting Rights Act — was a legitimate policy reason that courts should defer to.
- The Census Act gives the Secretary of Commerce wide discretion over the form and content of the Census, and citizenship questions have appeared on Census forms for nearly 200 years.
- The DOJ formally requested better citizenship data to help enforce Section 2 of the Voting Rights Act, and it was reasonable for the Secretary to try to accommodate that request.
- Courts generally should not probe the subjective motivations of agency decision-makers when the stated rationale is facially legitimate, and judicial second-guessing of the Secretary's policy judgment would violate separation-of-powers principles.
The Secretary's decision to add the citizenship question was unlawful because it was arbitrary and capricious under the Administrative Procedure Act, and the stated justification — Voting Rights Act enforcement — was a pretext that concealed the real reasons for the decision.
- Internal evidence showed that Secretary Ross began pushing for a citizenship question long before the DOJ made its request, and that Commerce officials actually orchestrated the DOJ letter to create a paper trail for a decision already made.
- The Census Bureau's own career experts concluded that adding the question would reduce response rates and produce less accurate citizenship data than existing administrative records, directly undermining the Bureau's core mission.
- Under the APA, courts are required to ensure that agency decisions are based on genuine, reasoned analysis of the evidence, and a pretextual rationale cannot satisfy that standard no matter how broad the agency's underlying discretion may be.