The Contradictions of John Roberts The Chief draws a road map for politicizing administrative law.
https://www.wsj.com/articles/the-contradictions-of-john-roberts-11561676526
Chief Justice John Roberts is the Supreme Court’s new swing vote, and he’s proving he won’t be pinned down by the law or judicial philosophy. His decision to join the four liberal Justices on Thursday to block a citizenship question on the Census is wrong on the merits and threatens larger damage to the Constitution’s separation of powers.
The question in Department of Commerce v. New York was whether Commerce Secretary Wilbur Ross acted within his purview in reinstating a citizenship question on the 2020 Census. That’s not the question the Court ended up deciding. Instead, the Chief held that although Mr. Ross acted lawfully, his motives appear to have been less than pure.
Congress has delegated to the Commerce Secretary broad discretion to conduct the Census “in such form and content as he may determine.” It’s indisputable that Mr. Ross had the legal authority to add the citizenship question. But Democratic states argued that he violated the Administrative Procedure Act by overruling Census Bureau bureaucrats who claimed the question could reduce response rates.
According to the states, a citizenship question could result in a population undercount that would reduce their federal funding and representation in Congress. They also claimed the question was motivated by racial animus toward Hispanics and intended to help Republicans gerrymander. There was scant evidence for either claim.
In a memo explaining his decision, Mr. Ross noted that the Justice Department had requested that the Secretary reinstate the citizenship question to gather more granular data to enforce the Voting Rights Act. The data could be useful in reviewing the make-up of majority-minority districts in which a majority of voters are members of a racial or ethnic minority.
“That decision was reasonable and reasonably explained, particularly in light of the long history of the citizenship question on the census,” the Chief Justice concluded in the part of the majority opinion that was joined by Justices Samuel Alito, Brett Kavanaugh, Neil Gorsuch and Clarence Thomas. That should have been the end of the judicial inquiry.
But a New York district judge last fall authorized an “extra-record discovery” and depositions to discern whether Mr. Ross had unstated motives. While chiding the district judge for overstepping, the Chief Justice says the unearthed evidence show Mr. Ross had conferred with other executive-branch officials about a citizenship question before Justice sent its request.
But so what? As the Chief acknowledges in the last portion of his opinion that is joined by his liberal colleagues, “decisions are routinely informed by unstated considerations of politics, the legislative process, public relations, interest group relations, foreign relations, and national security concerns (among others).”
Under longstanding precedent, courts may not reject an agency’s stated reasons for decisions merely because it may have other unstated reasons. But the Chief and the Court’s liberals make an exception in this case because all the evidence “considered together, reveal a significant mismatch between the decision the Secretary made and the rationale he provided.”
The Court is winking at the excesses of the lower-court judge and inviting challenges to the political motives of agency actions that are fully justified under the law. As Justice Thomas points out in his partial dissent joined by Justices Kavanaugh and Gorsuch, “the Court has opened a Pandora’s box of pretext-based challenges in administrative law.”
The Court is creating a road map for judges and interest groups to examine the record of interagency discussions to declare decisions invalid. This is breaking new legal ground because never before has the Court held an agency decision arbitrary and capricious because its supporting rationale was pretextual.
The Court’s decision will further politicize the courts and, as Justice Thomas warns, enable “partisans to use the courts to harangue executive officers through depositions, discovery, delay, and distraction” and “could even implicate separation-of-powers concerns insofar as it enables judicial interference with the enforcement of the laws.”
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It’s hard to reconcile Chief Justice Roberts’ opinion on the citizenship question with his Auer decision earlier this week. On one hand, he wants to defer to regulators on matters of legal interpretation that are the purview of courts, but on the other he wants to micromanage the motives of agencies when there is no cause for judicial review.
The Chief is also contradicting the message he sent in his gerrymander ruling on Thursday that judges shouldn’t get involved in political questions. He’s inviting more political lobbying of the Court and encouraging lower-court judges to intervene in partisan fights over matters of policy that the Constitution delegates to the political branches.
Maybe the Chief is trying to ensure the Court isn’t perceived as a rubber-stamp on the Trump Administration after upholding the President’s travel ban last year. But the ruling establishes a precedent that will be hard to limit and will surely be used by conservatives during a Democratic Administration.
At least the Chief’s dubious ruling in 2012 upholding the Affordable Care Act under Congress’s taxing power appeared to be a one-time trick to avoid killing the law. This mistake also looks political, but the damage to the judiciary and the Constitution will be hard to undo.
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