This article is part of a symposium previewing Trump versus New York.
Jennifer Nou is Professor of Law at the University of Chicago Law School.
The census saga continues. This time around, however, the Trump administration is more honest about its motivations. She wants to count immigrants in the country without permission, not – as it turns out – to enforce the voting rights law, but to influence the reallocation of the legislative seats. In particular, the government has issued a presidential memorandum to exclude these immigrants from the apportionment base used for the redistribution of the state’s population. The case before the Supreme Court raises important judicial, legal and constitutional arguments against the memorandum. By focusing only on legal entitlements, I will advocate an interpretation that subjects census-related policy decisions to a more robust administrative process. I hope this will help reduce the extent to which the census is a means of political anchoring.
The Census Act provides that the Secretary of Commerce “conducts a ten-year census” in “the form and content determined by him”. The law then requires the secretary to provide the president with a “total population by state” based on the ten-year census for redistribution purposes. The Reallocation Act, in turn, requires the President to “send” a “statement” to Congress showing the total number of people in each state … as shown in the … ten-year census, “using the” proportionate method. ” Note that the relevant statutes expressly delegate certain tasks to the trade secretary and not to the president. These tasks include doing the census, listing the population by state, and of course preparing the required report.
According to this scheme, the president’s power to interpret the powers expressly assigned to the secretary is supervisory law and not indicative. That is, the secretary has the power to make his own legal decisions, in which the views of the president are important but not necessarily determinative. Congress intended that understanding, as evidenced by the election of the legal delegate: here the secretary, not the president. Unsurprisingly, the government disagrees, arguing that the president’s authority here is a guideline that President Donald Trump make the “ultimate” political judgments – before the secretary has even performed his legal duties like this Case is. The government contends that the president’s authority is a guideline after receiving the report. So there is no reason why this should not be done before.
One reason for skepticism in this regard, however, is that the President’s discretion is likely to be extremely limited after receiving the report from the Commerce Department. This is because the Reallocation Act only gives the President 10 days to determine the “total number of people in each state” as part of the ten-year census. Such a short span of time suggests that Congress intended that changes made by the president at this point would be more like corrections than the kind of fundamental policy changes that President Trump is seeking here.
The government also bases its view on Franklin v Massachusetts, which implied the same laws, but in a dispute over how to divide up military personnel stationed overseas. Franklin referred to both “oversight” and “direct” of the President[ory]Authority without recognizing its difference or importance. One reason could have been the view that the distinction is purely academic: politically appointed agency heads, who can be removed at will, should in practice correspond to the president. Another explanation could be due to the hasty drafting of the opinion and insufficient information. Moreover, in Franklin, as in this case, there was no indication that the Secretary of Commerce and the President disagreed. If that were the case, the difference between regulatory and guideline authority would be marginally more important.
The distinction is important, however, if, as here, the secretary has not yet completed the tables and submitted his report to the President. During this time, experts from the Census Bureau often push against the direction of the White House. The agency has also gone through a solid administrative process in the past, where deliberations within the executive branch may be more contentious. Indeed, in 2018 the Census Bureau decided that the apportionment should be made by reference to an individual’s “habitual residence”. It heralded this view through the creation of Notice and Comment Rules (the “Residence Rule”), on which the agency pondered nearly 78,000 comments. One of these comments “expressed concern” about the “inclusion of undocumented people in the population” because they could not vote. Nevertheless, the agency stated that “[f]oreign Citizens ”would be counted and divided based on where they lived and slept most of the time. The agency confirmed in later guidelines that “undocumented residents” would be included.
It is natural to wonder why the Census Bureau enacted such regulations despite Franklin’s finding that the measures related to the division of the agency were not subject to the Administrative Procedure Act. The APA, after all, is the law that requires public notices and comments, and non-arbitrary decisions. One possibility could be a suggestion made by Justice John Paul Stevens’ Franklin approval that the secretary’s eventual census report to the President of the APA could be subject to the APA as long as the litigants join[ed] their division calls into question other census claims ”- for example in relation to all funding decisions by the federal and state governments that are included in the census report. In other words, the agency may still have felt tied to the APA, especially if it never thought of producing two separate sets of census figures for funding and apportionment purposes, as it likely did not.
In the present case, the challenger’s position in court appears to be that Trump’s memorandum changes the ten-year census itself – that is, the census numbers that would affect funding decisions as well as the apportionment. The administration disagrees on the extent to which this is the case. hopefully oral arguments will clarify. The point for now is that if Trump’s policy did indeed affect funding decisions under separate statutes, then there is a good argument that the resulting census report should be subject to the APA. At least in terms of these funding decisions, it will be “final”. And it’s issued by an agency director, not the president himself (whom Franklin and subsequent cases did not classify as an “agency” under the APA).
If this is correct, an interesting implication may be that the residence rule is appropriately characterized as a legislative rule. A change to no longer include people who lack legal immigration status from the total population would require another round of notification and commentary under the APA – provided these counts did not have any partitioning legal implications either. In other words, this change in policy could not be made through a memorandum from the President alone.
To take a step back, the census and reallocation laws should be read to determine different roles for the president before and after the commercial secretary publishes his legal report. Previously, the President had only oversight of the Secretary’s conduct of the census and the listing of the population by state. According to the facts here, this power should have been exercised by the Census Bureau as part of the regulatory process and the conduct of the census. As the residence rule has not yet been lifted, the policy of counting all residents for the purpose of apportionment remains mandatory. Any report by the Trade Secretary that now deviates from this Policy may be subject to the APA, as long as it does not have a split-related legal impact.
After the secretary has issued the legal report, the dynamics and optics change. In Franklin’s words, the president can “reform” the census, but must do so within 10 days. Any instruction that he gives the secretary at this point must necessarily be limited in scope, both for reasons of legal interpretation and practicality. Recent news that the Census Bureau may have to postpone its report beyond the Trump administration underscores the separate roles of the Secretary of Commerce and the President under the relevant statutes. (The prospect can also relate to the question of the maturity of this case). For all these reasons, the Memorandum’s extensive reliance on the President’s discretion under the Redistribution Act is wrong.
Ultimately, there is much to be gained by subjecting the census to administrative processes that can control the inevitable temptation of presidents to aid their own political parties through redistribution. Taming these impulses was the point of the census and reallocation laws. Such processes may take place during internal executive consultations involving agency officials, including those from the Census Expert bureau, which are subject only to the regulator. They may also result from more well-known notice and comment rules that are subject to arbitrary review. Administrative procedure is hardly a panacea. In connection with a ten-year census with effects on the electoral college, however, this can make a great contribution to the relegitimation of an election campaign that is urgently needed.
Jennifer Nou, Symposium: Depoliticization of the Census through Administrative Process,
SCOTUSblog (November 24, 2020, 4:47 p.m.), https://www.scotusblog.com/2020/11/symposium-depoliticizing-the-census-through-administrative-process/