Amicus Briefs
New York v. Department of Commerce (2020 Census Case)
US Supreme Court
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
- Whether addition of the citizenship question violates rights to equal protection of laws under the Due Process Clause of the Fifth Amendment.
- 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.
- 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. Supreme Court
U.S. Department of Commerce v. New York, No. 18-966
Merits Stage
- Petitioner United States’s brief (Mar. 6, 2019)
- Amicus Briefs in Support of Petitioner
- Amicus Brief of Ronald Cass & Christopher DeMuth Sr. (Mar. 6, 2019)
- Amicus Brief of the State of Oklahoma and others (Mar. 6, 2019)
- Amicus Brief of Project on Fair Representation (Mar. 6, 2019)
- Amicus Brief of Eagle Forum Education & Legal Defense Fund (Mar. 6, 2019)
- Amicus Brief of Public Interest Legal Foundation (Mar. 6, 2019)
- Amicus Brief of Republican National Committee and the National Republican Congressional Committee(Mar. 6, 2019)
- Amicus Brief of Citizens United and others (Mar. 6, 2019)
- Amicus Brief of Judicial Watch and Allied Educational Foundation (Mar. 6, 2019)
- Amicus Brief of Immigration Reform Law Institute (Mar. 6, 2019)
- Brief of Government Respondents (Apr. 1, 2019)
- Brief of Respondents the New York Immigration Coalition and the ACLU (Apr. 1, 2019)
- Amicus Briefs in Support of Respondents
- Amicus Brief of the Electronic Privacy Information Center (EPIC) (Apr. 1, 2019)
- Amicus Brief of Businesses and Business Organizations (Apr. 1, 2019)
- Amicus Brief of Natural Resources Defense Council (Apr. 1, 2019)
- Amicus Brief of Norman Y. Mineta and others (Apr. 1, 2019)
- Amicus Brief of the State of California (Apr. 1, 2019)
- Amicus Brief of Current Members of Congress and Bipartisan Former Members of Congress (Apr. 1, 2019)
- Amicus Brief of Plaintiffs in Kravitz v. Department of Commerce (Apr. 1, 2019)
- Amicus Brief of American Statistical Association and others (Apr. 1, 2019)
- Amicus Brief of the Nielsen Company (Apr. 1, 2019)
- Amicus Brief of United States House of Representatives (Apr. 1, 2019)
- Amicus Brief of Catholic Charities and others (Apr. 1, 2019)
- Amicus Brief of the Arab American Institute (Apr. 1, 2019)
- Amicus Brief of the Council on Great City Schools (Apr. 1, 2019)
- Amicus Brief of Harris County, Texas, and others (Apr. 1, 2019)
- Amicus Brief of the Leadership Conference on Civil and Human Rights and others (Apr. 1, 2019)
- Amicus Brief of the NAACP Legal Defense and Education Fund (Apr. 1, 2019)
- Amicus Brief of Lawyers for Civil Rights (Apr. 1, 2019)
- Amicus Brief of 190 Bipartisan Elected Officials (Apr. 1, 2019)
- Amicus Brief of Former Census Bureau Directors (Apr. 1, 2019)
- Amicus Brief of Foundatiosn and Philanthropy-Serving Organizations (Apr. 1, 2019)
- Amicus Brief of Former Federal District Judges (Apr. 1, 2019)
- Amicus Brief of National Asian Pacific American Bar Association and others (Apr. 1, 2019)
- Amicus Brief of International Municipal Lawyers Association and others (Apr. 1, 2019)
- Amicus Brief of County of Santa Clara and others (Apr. 1, 2019)
- Amicus Brief of Central Valley Immigrant Integration Collaborative and others (Apr. 1, 2019)
- Amicus Brief of Legal Services NYC and others (Apr. 1, 2019)
- Amicus Brief of John R. Dunne and others (Apr. 1, 2019)
- Amicus Brief of Common Cause and others (Apr. 1, 2019)
- Amicus Brief of Six Historians and Social Scientists (Apr. 1, 2019)
- Amicus Brief of the City of San Jose and the Black Alliance for Just Immigration (Apr. 1, 2019)
- Amicus Brief of Nicholas Bagley and others (Apr. 1, 2019)
- Amicus Brief of the National Council of Nonprofits and others (Apr. 1, 2019)
- Amicus Brief of LatinoJustice PRLDEF and others (Apr. 1, 2019)
- Reply Brief for Petitioners (Apr. 16, 2019)
- Oral Argument (Apr. 23, 2019)
- Opinion (June 27, 2019)
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
- Complaint (April 3, 2018)
- First Amended Complaint (April 30, 2018)
- Second Amended Complaint (July 25, 2018)
- Defendants’ Answer to Second Amended Complaint (August 31, 2018)
- Amicus Briefs in Support of Plaintiff
- Amicus Brief of the Electronic Privacy Information Center (EPIC) (October 29, 2018)
- Amicus Brief of Common Cause, Trevor Potter, Rep. Jody L. McNally, and Justice Robert Orr (Ret.)(October 29, 2018)
- Amicus Brief of the Leadership Conference on Civil and Human Rights (October 29, 2018)
- Amicus Brief of Norman Y. Mineta, the Sakamoto sisters, the Council on American-Islamic Relations, New York (CAIR-NY), and the Fred T. Korematsu Center for Law and Equality (October 29, 2018)
- Amicus Brief of Tech:NYC, Univision Communications, Warby Parker, General Assembly, Topia, and the Minneapolis Regional Chamber of Commerce (October 29, 2018
- Former Census Directors Amicus Brief (October 29, 2018)
- Amicus Brief of the American Statistical Association, American Sociological Association, and Population Association of America (October 29, 2018)
- Amicus Brief of the New York State Black, Puerto Rican, Hispanic, and Asian Legislative Caucus (October 29, 2018)
- Amicus Briefs in Support of Defendant
- Amicus Brief of the Public Interest Legal Foundation (October 29, 2018)
- Opinion (Jan. 15, 2019)
- Memorandum of Law in Support of Defendants’ Motion to Dismiss (May 25, 2018)
- Notice of Motion for Leave to File Memorandum of Law as Amicus Curiae in Support of Defendants’ Motion to Dismiss by the American Center for Law and Justice (June 1, 2018)
- Amicus Brief of the States of Oklahoma, et al. in Support of Defendants’ Motion to Dismiss (June 1, 2018)
- Amicus Brief in Support of Defendants’ Motion to Dismiss by the Project on Fair Representation (June 6, 2018)
- Amicus Brief of the Federation for American Immigration Reform in Support of Defendants and Dismissal (June 7, 2018)
- Amicus Brief of the Federation for American Immigration Reform in Support of Defendants and Dismissal (June 11, 2018)
- Memorandum of Law in Opposition to Defendants’ Motion to Dismiss (June 13, 2018)
- Amicus Brief of Current Members of Congress and Bipartisan Former Members of Congress in Support of Plaintiffs (June 15, 2018)
- Amicus Brief of The Leadership Conference on Civil and Human Rights, et al. in Support of Plaintiffs (June 18, 2018)
- Reply Memorandum of Law in Further Support of Defendants’ Motion to Dismiss (June 22, 2018)
- Opinion and Order re: Motion to Dismiss (July 26, 2018)
- Plaintiffs’ Letter Brief Regarding Discovery Outside of the Administrative Record (June 26, 2018)
- Defendants’ Letter Brief Regarding Discovery Outside of the Administrative Record (June 26,2018)
- Order Setting Timeline for Discovery (July 5, 2018)
- Plaintiffs’ Request for Conference to Resolve Discovery Dispute (August 3, 2018)
- Defendants’ Letter re: Conference to Resolve Discovery Dispute (August 7, 2018)
- Plaintiffs’ Fourth Letter re: Discovery (August 13, 2018)
- Defendants’ Letter Opposing Motion to Compel Discovery (August 15, 2018)
- Declaration of Michael Cannon re: Discovery (August 15, 2018)
- Defendants’ Letter in Opposition to Plaintiffs’ Motion to Compel Acting Assistant Attorney General for Civil Rights John Gore to Appear for Deposition (August 15, 2018)
- Order re: Letter Motion to Compel (August 20, 2018)
- Plaintiffs’ Letter Motion re: Discovery and Depose Non-Party Kris Kobach (August 30, 2018)
- Defendants’ Letter Motion to Stay Discovery Pending Petition for Writ of Mandamus (August 31, 2018)
- Plaintiffs’ Fifth Letter Motion re: Discovery (August 31, 2018)
- Plaintiffs’ Sixth Letter Motion re: Discovery (September 4, 2018)
- Defendants’ Letter Response re: Discovery and Depose Non-Party Kris Kobach (September 5, 2018)
- Opinion and Order re: Letter Motion to Stay Discovery (September 7, 2018)
- Plaintiffs’ Seventh Letter Motion re: Discovery (September 10, 2018)
- Plaintiffs’ Letter Motion re: Discovery and Depose Non-Party Secretary of Commerce Wilbur Ross (September 10, 2018)
- Plaintiffs’ Reply in Support of Motion re: Discovery and Depose Secretary of Commerce Wilbur Ross (September 17, 2018)
- Letter re: Appropriateness of Summary Judgement (September 18, 2018)
- Order re: Deposition of Secretary of Commerce Wilbur Ross (September 21, 2018)
- Status Report re: Deposition of Secretary of Commerce Wilbur Ross (September 27, 2018)
- Defendants’ Letter Motion to Stay Discovery Pending U.S. Supreme Court Review (September 28, 2018)
- Plaintiffs’ Letter Response in Opposition to Motion to Stay Discovery Pending U.S. Supreme Court Review (September 28, 2018)
- Opinion and Order re: Motion to Stay Discovery (September 30, 2018)
- Order Denying Stay of Discovery (October 2, 2018)
- Opinion and Order re: Letter Motion to Compel (October 5, 2018)
- Notice of Stay (October 10, 2018)
- Plaintiffs’ Status Report (October 10, 2018)
- Defendants’ Second Supplemental Responses to Plaintiffs’ First Set of Interrogatories to Department of Commerce and Secretary of Commerce Wilbur Ross (October 11, 2018)
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)
- Petition for Writ of Mandamus (Sept. 7, 2018)
- Order (September 10, 2018)
- Amicus Brief of the Public Interest Foundation in Support for Petitioners (September 14, 2018)
- Opposition to Petition for Writ of Mandamus (September 17, 2018)
- Defendants’ Reply in Support of Petition for Writ of Mandamus (September 21, 2018)
- Order Denying Petition for Writ of Mandamus (Sept. 25, 2018)
- Order Denying Stay of Discovery (Oct. 2, 2018)
- Letter from the Department of Justice (October 5, 2018)
- Letter from the Respondents’ Counsel (October 7, 2018)
In re: U.S. Department of Commerce et al., No. 18-2856 (Extra-Record Discovery and Wilbur Ross Deposition)
- Petition for Writ of Mandamus (Sept. 28, 2018)
- Order (September 28, 2018)
- Order Denying Stay of Discovery (Oct. 2, 2018)
- Brief in Opposition to Petition for a Writ of Mandamus (October 4, 2018)
- Reply Brief in Support of Petition for a Writ of Mandamus (October 5, 2018)
- Letter from the Department of Justice (October 5, 2018)
- Letter from the Attorney General of the State of New York (October 6, 2018)
- Letter from the Attorney General of the State of New York (October 7, 2018)
- Order Denying Petition for Writ of Mandamus (Oct. 9, 2018)
U.S. Supreme Court
In re: U.S. Department of Commerce et al., No. 18A350
- Application for a Stay (Oct. 3, 2018)
In re: U.S. Department of Commerce et al., No. 18A375
- Application for a Stay (Oct. 9, 2018)
- Order Staying District Court Proceedings Pending Response (Oct. 9, 2018)
- Response of Plaintiffs-Respondents New York Immigration Coalition et al. in Opposition to Renewed Application for Stay (Oct. 11, 2018)
- Response of Government Plaintiffs to Renewed Application for a Stay (Oct. 11, 2018)
Resources
- The Administrative Procedure Act
- U.S. Code, Title 13
- Information Quality Act
- E-Government Act of 2002
- U.S. Census Bureau Statistical Quality Standards
- Brennan Center: Litigation About the 2020 Census
EPIC Resources
News
Census Bureau Director Defends Use of Differential Privacy
December 1, 2022
Census Bureau Director Defends Use of Differential Privacy
December 1, 2022
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