The Administrative Law Dispute at the Heart of the Census and DACA Cases

It is an exciting time to study administrative law. The pillars of this field — cases such as Chevron, Humphrey’s Executor, and Whitman v. American Trucking — seem likely to be up for grabs at the Supreme Court. And the Court’s resolution of the controversial census and DACA cases has turned (or will likely turn) on applications of the Administrative Procedure Act’s “arbitrary and capricious” standard of review. Both cases involve decisions of enormous importance to the Trump Administration. What you may not know is that the arbitrary and capricious standard of review is also up for grabs. As explained in my recent paper (written with Barry Sullivan and forthcoming in the Connecticut Law Review), the Supreme Court has never formed a stable majority on the question of how much deference courts owe the executive branch under this standard of review. Should courts find a decision arbitrary and capricious where an officer implements the president’s preferred policies but omits expert analysis of relevant data? Or should courts ease up on analytical requirements and provide greater latitude for policies implemented at the behest of an elected president?

Unfortunately, the Court’s 2019 decision in Department of Commerce v. New York sends mixed messages on these questions. The Secretary of Commerce (Wilbur Ross)’s controversial decision to add a citizenship question to the 2020 census drew shifting coalitions of five Justices. Chief Justice Roberts provided the deciding vote and wrote the opinion for each coalition, and Justices Alito, Gorsuch, Kavanaugh, and Thomas joined the part of the Chief Justice’s opinion that approved the Secretary’s general analysis. The Chief Justice granted great deference when he determined that the Secretary’s explanation need only lie “within the bounds of reasoned decisionmaking.” It was reasonable for Secretary Ross to conclude “that reinstating a citizenship question was worth the risk of a potentially lower response rate,” even though the Secretary bypassed routine testing designed to provide additional empirical evidence about response rates.

Had the Court resolved the case on this first issue alone, its decision may have signaled a shift to a more deferential version of arbitrary and capricious review. However, procedural irregularities led the Chief Justice to switch sides and invalidate the Secretary’s decision on grounds of pretext. Justices Breyer, Ginsburg, Kagan, and Sotomayor joined the Chief Justice’s opinion on this issue. Roberts’s disapproval focused on the “significant mismatch between the decision the Secretary made and the rationale he provided.” While the finding of pretext turned on “unusual circumstances,” none of the opinions expressly discussed late-breaking evidence of a clandestine study conducted by Dr. Thomas Hofeller, a redistricting specialist. This evidence raises the possibility that Secretary Ross was aware of Hofeller’s findings (that a citizenship question would benefit “Republicans and Non-Hispanic Whites”) and that the Secretary declined routine testing to avoid collecting public evidence on these points. The Chief Justice’s finding of pretext implicitly addressed this concern, but it failed to articulate a manageable standard for future cases.  

The Court missed an important opportunity to mitigate similar concerns in future cases. Rather than a finding of pretext “good for this day” only, the Court might have achieved the same result by finding the Secretary’s analytical shortcuts arbitrary and capricious. The initial and more deferential standard of review applied by Chief Justice Roberts glossed over the fact that the Secretary chose to base his official decision on limited evidence about response rates when he bypassed testing routinely employed for new census questions. A less deferential approach would reflect Justice Scalia’s earlier suggestion, in FCC v. Fox I, that “failure to adduce empirical data that can readily be obtained” might render a policy change arbitrary and capricious. It would also align with Justice Kennedy’s concurrence in the same case. Justice Kennedy emphasized the importance of agency decisions that are “explained in light of available data,” “informed by the agency’s experience and expertise,” and “justified by neutral principles and a reasoned explanation.”

It is unclear whether the Court will have a chance to clarify the arbitrary and capricious standard of review when ruling on the Trump Administration’s decision to rescind the DACA (or Deferred Action for Childhood Arrivals) program. While this case is extremely important, it involves a distinct set of humanitarian policy concerns, including reliance interests. Broader questions about the arbitrary and capricious standard of review seem likely to remain unanswered in 2020.