New York v. Department of Commerce (2020 Census Case)

Whether the Department of Commerce and Census Bureau violated the Administrative Procedure Act when it added a citizenship question to the 2020 Census
  • NY Court Blocks Citizenship Question in 2020 Census: A federal judge has ruled that the Secretary of Commerce's decision to add the citizenship question to 2020 Census was unlawful. EPIC filed an amicus brief in the case, arguing that "history has shown that personal data, collected by the government through the census, can threaten individual rights." EPIC has also sued the Department of Commerce (EPIC v. Commerce) because the agency failed to complete a Privacy Impact Assessment prior to collecting citizenship data. A 2004 EPIC FOIA lawsuit revealed that the Census Bureau provided DHS with data on Arab Americans after 9-11, leading the Census Bureau to revise its "sensitive data" policy for transfers to law enforcement and intelligence agencies. (Jan. 15, 2019)
  • In Amicus Brief, EPIC Opposes Citizenship Question in 2020 Census: EPIC has filed an amicus brief in a case challenging the addition of a citizenship question to the 2020 census. EPIC expressed support for the decennial tally of those in the US, but warned that, "history has shown that personal data, collected by the government through the census, can threaten individual rights." EPIC said that the Bureau failed to complete an updated Privacy Impact Assessment about the risk that personal data could be used for purposes unrelated to the census. In comments to the Census Bureau, EPIC opposed the citizenship question this year. EPIC also obtained Census Bureau documents in FOIA case, including email from Kris Kobach to Secretary Ross requesting the addition "on the direction of Steve Bannon." A 2004 EPIC FOIA lawsuit revealed that the Census Bureau had provided DHS with data on Arab Americans after 9-11, leading the Census Bureau to revise its "sensitive data" policy for transfers to law enforcement and intelligence agencies. Former Directors of the Census Bureau also filed an amicus brief in New York et al. v. Department of Commerce, opposing the citizenship question. (Oct. 30, 2018)
  • More top news »
  • EPIC Files Appeal to Block Census Citizenship Question » (Feb. 12, 2019)
    EPIC has filed an expedited appeal in EPIC v. Commerce to block the Census Bureau from collecting citizenship information in the 2020 Census. EPIC alleged that the Bureau failed to complete privacy impact assessments before adding the citizenship question. A lower court held that the Bureau must "prepare PIAs that adequately address the collection of citizenship data in the 2020 Census" and the Bureau conceded it would complete the assessments by March. But the lower court denied EPIC's motion for a preliminary injunction, concluding that the Census Bureau is not required to conduct a privacy assessment "until the Bureau mails its first batch of Census questionnaires to the public," a view entirely at odds with the E-Government Act. EPIC has filed numerous successful lawsuits to require privacy impact assessments, including EPIC's case that led a now-defunct Presidential Commission to delete state voter data it unlawfully obtained. EPIC's case in the lower court is captioned EPIC v. Commerce, No. 18-2711 (D.D.C.).
  • Court Denies Injunction in EPIC Census Privacy Suit » (Feb. 8, 2019)
    A federal court has denied EPIC’s motion for a preliminary injunction and refused to block the Census Bureau from collecting citizenship information via the 2020 Census. As EPIC told the court, the Bureau unlawfully failed to complete multiple privacy impact assessments before it abruptly introduced the citizenship question last year. The court acknowledged that the Bureau must “prepare PIAs that adequately address the collection of citizenship data in the 2020 Census” and noted that “negative policy consequences” could result “if an agency drags its feet in performing its PIA obligations.” Nevertheless, the court held that the Bureau may drag its feet in conducting the required assessments “until the Bureau mails its first batch of Census questionnaires to the public” in 2020. EPIC has filed numerous successful lawsuits to require privacy impact assessments, including EPIC's case that led a now-defunct Presidential Commission to delete state voter data it unlawfully obtained. EPIC intends to press forward with the census case, which is captioned EPIC v. Commerce, No. 18-2711 (D.D.C.).
  • EPIC Makes Final Arguments for Injunction Blocking Citizenship Question » (Feb. 6, 2019)
    EPIC has filed a reply brief in EPIC v. Commerce urging a federal court to block the Census Bureau from adding a citizenship question to the 2020 Census. EPIC alleges that the Census Bureau failed to complete privacy impact assessments, required by law, before it abruptly added the citizenship question last year. Secretary Ross has already suggested that the census data would be used for law enforcement purposes. "Congress expected that the Bureau would conduct a comprehensive privacy review early in the process, not as the census forms were heading to the printer or delivered to the post office," EPIC told the court. A federal court in New York recently blocked the citizenship question, but the Census Bureau has appealed that decision. EPIC filed an amicus brief in the New York case and has long advocated for robust protections for census data. EPIC has also filed numerous successful lawsuits to require privacy impact assessments, including EPIC's lawsuit that led a now-defunct Presidential Commission to delete state voter data it unlawfully obtained.
  • Census Bureau: 99 Percent of Commenters Oppose Citizenship Question » (Jan. 24, 2019)
    According to a Census Bureau report, 99 percent of commenters who gave feedback on the 2020 Census are opposed to the planned addition of the citizenship question. The Bureau received more than 136,000 comments against the collection of citizenship data, many of which were signed by multiple individuals and organizations. EPIC filed comments opposing the citizenship question, arguing that it will interfere with the census's constitutional purpose and undermine the integrity of the census. EPIC is currently seeking a preliminary injunction to block the collection of citizenship data because the Bureau failed to complete privacy impact assessments required by law. The Court has scheduled a hearing for Feb. 8. EPIC's case is EPIC v. Commerce, No. 18-2711 (D.D.C.).
  • EPIC Seeks Injunction to Block Census Citizenship Question » (Jan. 18, 2019)
    EPIC is seeking a preliminary injunction to block the Census Bureau from adding a question about citizenship to the 2020 Census. EPIC alleges that the Census Bureau failed to complete privacy impact assessments, required by law, before it abruptly added the question to the census last year. EPIC explained that the "extraordinary reach of the Bureau into the private lives of Americans brings with it extraordinary risks to privacy." A federal court in New York recently blocked the citizenship question, but the Census Bureau has appealed that decision. EPIC filed an amicus brief in the New York case and has long advocated for robust protections for census data. EPIC has also filed numerous successful lawsuits to require privacy impact assessments, including EPIC's lawsuit that led a now-defunct Presidential Commission to delete state voter data it unlawfully obtained.
  • NY Court Blocks Citizenship Question in 2020 Census » (Jan. 15, 2019)
    A federal judge has ruled that the Secretary of Commerce's decision to add the citizenship question to 2020 Census was unlawful. EPIC filed an amicus brief in the case, arguing that "history has shown that personal data, collected by the government through the census, can threaten individual rights." EPIC has also sued the Department of Commerce (EPIC v. Commerce) because the agency failed to complete a Privacy Impact Assessment prior to collecting citizenship data. A 2004 EPIC FOIA lawsuit revealed that the Census Bureau provided DHS with data on Arab Americans after 9-11, leading the Census Bureau to revise its "sensitive data" policy for transfers to law enforcement and intelligence agencies.
  • EPIC Files Suit to Block Census Citizenship Question » (Nov. 20, 2018)
    EPIC has filed a lawsuit to block the addition of a citizenship question to the 2020 Census. EPIC charged that the Census Bureau failed to complete multiple Privacy Impact Assessments, as required by law. The Bureau abruptly added the citizenship question earlier this year but did not assess the privacy impact on census respondents, who are legally obligated to answer all questions. As EPIC's lawsuit reveals, the Bureau recently indicated—for the first time—that personal data provided to the Census Bureau could be used "for criminal law enforcement activities." The Bureau's admission raises new questions about whether citizenship information will be transmitted to the Department of Justice. EPIC has filed numerous successful lawsuits seeking to enforce federal agencies' obligation to publish Privacy Impact Assessments. Earlier this year, the Presidential Advisory Commission on Election Integrity was shut down after EPIC filed a lawsuit to block the collection of state voter data and challenging the Commission's failure to complete a Privacy Impact Assessment.

Summary

In response to the announcement in March of 2018 that the U.S. Census Bureau will request citizenship information as part of the 2020 decennial Census, a coalition of eighteen states (including New York), six cities, and the bipartisan U.S. Conference of Mayors sued the Department of Commerce in the Southern District of New York. The challengers sought to compel removal of the citizenship question from the 2020 Census. The suit will determine (1) whether the citizenship question was added with a discriminatory intent, in violation of Fifth Amendment due process clause; (2) whether the citizenship question violates the Information Quality Act, and (3) whether the addition of the question was arbitrary and capricious, in violation of the Administrative Procedure Act. The lower court has denied the Government’s motion to dismiss the case, and the parties are now in discovery with a trial scheduled for November 2018.

Questions Presented

  1. Whether addition of the citizenship question violates rights to equal protection of laws under the Due Process Clause of the Fifth Amendment.
  2. Whether the addition of the citizenship question is inconsistent with data quality requirements under the Information Quality Act, such that reinstatement was “not in accordance with law,” “without observance of procedure required by law,” “contrary to constitutional right,” and “beyond statutory authority,” under the Administrative Procedure Act.
  3. Whether the reinstatement was “arbitrary and capricious” under the Administrative Procedure Act.

Background

Factual Background

Under direction of the U.S. Department of Commerce, the U.S. Bureau of the Census (“Census Bureau”) conducts nationwide decennial census reports. The Constitution requires the government to conduct a census every ten years to count the “whole number of persons” in the United States. U.S. Const. art. I, § 2, cl.3. Census population data is used to draw representative districts in the House of Representatives and to apportion federal funding. In March 2018, the Department of Commerce announced that it would add a question to the 2020 census: “Is this person a citizen of the United States?” The Department of Commerce stated that this question was added at the request of the Department of Justice. The DOJ’s request stated that it needs data on the citizen voting-age population to enforce the Voting Rights Act. Although other surveys conducted by the Census Bureau have included a citizenship question, the decennial census has not requested citizenship information since 1950.

Six lawsuits have been filed in opposition to the citizenship question, including New York v. U.S. Department of Commerce. Plaintiffs and other critics argue that the Department has not shown a legitimate reason to add the citizenship question, and that concerns over confidentiality of citizenship information will deter immigrant participation in the census and undermine accuracy of the population count. The actual purpose of adding the citizenship question remains a question of fact, which will be determined in the upcoming trials. During discovery, the plaintiffs obtained from the agency memoranda and emails that indicate the Department of Commerce had been planning to add the citizenship question as early as Spring 2017, well before the DOJ purportedly made a request to add the question.

There has been greater concern about the confidentiality of 2020 census data than in previous decennial censuses. The Census Bureau conducted a study in 2017 that found respondents expressing new concerns about the “Muslim ban,” the dissolution of DACA, and the activities of Immigration and Customs Enforcement. The study found that these concerns were most pronounced among immigrant respondents. Concerns over census confidentiality also stem from prior incidents where the federal government has misused census data. The Second War Powers Act of 1942 allowed census data to be used to round up Japanese-Americans for internment during WWII. In 2004, EPIC obtained documents revealing that, after 9/11, the Census Bureau provided the Department of Homeland Security with statistical data on people who identified themselves on the 2000 census as being of Arab ancestry, even though nonstatistical use of census data was unauthorized under 13 U.S.C. § 9. Critics suggest that citizenship information could be misused again, either for nonstatistical law enforcement purposes outside of Voting Rights Act enforcement or to shift political power away from areas with large immigrant populations.

To date, many have opposed the addition of the censorship question, including six former directors of the Census Bureau:

“We strongly believe that adding an untested question on citizenship status at this late point in the decennial planning process would put the accuracy of the enumeration and success of the census in all communities at grave risk.”

- Six former directors of the Census Bureau in a letter to Secretary Ross

Plaintiffs in New York have asserted two constitutional claims and two APA claims. Under an Enumeration Clause claim, Plaintiffs argued that the citizenship question would be unconstitutional if it would reduce census response rates because the Enumeration Clause requires the “whole number of persons” to be counted. Under a Fifth Amendment Due Process Clause claim, Plaintiffs argued that the addition of the question was motivated by discriminatory intent and would deny equal protection under the laws to individuals who choose not to answer the question. Under the APA, Plaintiffs argued that the reinstatement was “arbitrary and capricious,” “not in accordance with law,” “without observance of procedure required by law,” “contrary to constitutional right,” and “beyond statutory authority.”

Procedural History

The Defendants filed a motion to dismiss all claims on May 25, 2018. Defendants asserted that New York and its constituent challengers failed to state a valid claim under the Enumeration Clause, that Plaintiffs cannot prove discriminatory intent for a viable Due Process claim, and that the APA claims were not subject to judicial review because census-taking is subject to agency discretion. On July 26, 2018, the court granted the motion to dismiss in part and denied it in part. The court granted Defendants’ motion to dismiss on the Enumeration Clause claim, finding that the inclusion of a citizenship question is “not an impermissible exercise” of Enumeration Clause powers because the Constitution grants “virtually unlimited discretion” to Congress. However, the court denied Defendants’ motion to dismiss for the APA and Due Process claims, finding that the Census Act does not “fairly exude deference to the agency” like other statutes, and that the Plaintiffs succeeded in demonstrating that the addition of the citizenship question denotes potential discriminatory intent. The court allowed New York’s APA and Due Process Claims to proceed, ordering Secretary of Commerce, Wilbur Ross and Acting Assistant Attorney General, John Gore, to sit for depositions by October 12. The lower court ordered Secretary of Commerce, Wilbur Ross, and Acting Assistant Attorney General, John Gore, to sit for depositions by October 12. The Defendants filed numerous requests to stay discovery to challenge the deposition orders, along with appeals to the Second Circuit and an emergency application for stay with the U.S. Supreme Court. After the Second Circuit denied appeal of the orders, the U.S. Supreme Court temporarily halted the deposition orders.

The case then proceeded to the discovery phase and Plaintiffs noticed depositions on Secretary of Commerce, Wilbur Ross and Acting Assistant Attorney General, John Gore. The court ordered that the discovery period should be completed by October 12th. Defendants’ moved to quash the depositions, arguing that they would be unduly burdensome to the agency officials, but the lower court refused to do so. On September 7th, the Defendants filed a writ of mandamus to the Second Circuit requesting the Court to either halt discovery or quash the District court’s order for Gore’s deposition. Defendants also filed a motion in the lower court to stay on all discovery (including Ross and Gore’s depositions) pending resolution of the writ. On September 21, the lower court denied the request and ordered Ross and Gore to sit for depositions, finding that Ross’s “intent and credibility are directly at issue” because the Department of Commerce added the question despite widespread “strong and continuing opposition” from the Census Bureau. The Defendants appealed that order to the Second Circuit, seeking relief to protect agency officials from deposition. The Second Circuit denied the Defendants’ petition for a writ of mandamus, but agreed to consider the Defendants’ appeal of the deposition order. The Defendants again requested that the lower court stay all discovery, including depositions of Ross and Gore, pending review by the U.S. Supreme Court. The lower court again denied the request, finding the Defendants’ latest application for a stay of all discovery was “particularly frivolous . . . if not outrageous.”

On October 3rd, Defendants submitted an emergency application to the U.S. Supreme Court for stay pending review of the Defendants’ appeal of the district court’s discovery order. Justice Ruth Bader Ginsburg denied the application on October 5 “without prejudice, provided that the Court of Appeals will afford sufficient time for either party to seek relief in [the Supreme Court] before the depositions in question are taken.” After the Second Circuit denied Defendants’ appeal on October 9th, the Defendants submitted another emergency application that evening and Justice Ginsburg issued an order temporarily staying discovery pending receipt of a response by the Plaintiffs on October 11th at 4pm.

EPIC’s Interest

EPIC has long advocated for the need to safeguard the privacy of citizens, especially in the context of government data collection. The census implicates many of EPIC’s policy areas, including open government, data protection, and cybersecurity. In 2004, EPIC uncovered documents that revealed a secret census data disclosure after 9/11 between the Census Bureau and the Department of Homeland Security. EPIC learned that the Census Bureau gave the agency information about individuals who claimed Arab ancestry in the 2000 census. EPIC joined a coalition of over twenty civil liberties groups to compel the Department of Homeland Security to explain how the agency acquired and used the census data. According to email correspondence between a census analyst and DHS official, the information was used to determine appropriate languages for signs at international airports.

Immediately after the Department of Commerce announced the addition of the citizenship question in March 2018, EPIC submitted a Freedom of Information Act request seeking documents on the Department's consideration of the question. Secretary Wilbur Ross stated during a hearing that “there are probably 15 or 20 different very complicated issues involved in the request.” EPIC has not yet received records responsive to the request.

Legal Documents

U.S. District Court for the Southern District of New York

New York et al. v. U.S. Department of Commerce and Bureau of the Census, No. 18-2921

U.S. Court of Appeals for the Second Circuit

In re: U.S. Department of Commerce et al., No. 18-2652 (Extra Record Discovery and John Gore Deposition) In re: U.S. Department of Commerce et al., No. 18-2856 (Extra-Record Discovery and Wilbur Ross Deposition)

U.S. Supreme Court

In re: U.S. Department of Commerce et al., No. 18A350 In re: U.S. Department of Commerce et al., No. 18A375

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