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1/ Running Thread on Dept. of Commerce v. NY #SCOTUS
2/ Roberts's discussion of the Enumeration Clause is, in effect, a discussion of the scope of Congress's implied powers. Taken literally, the Enumeration Clause would only allow the government to assess a headcount--it could not ask any demographics questions.
3/ What provision of the Constitution empowers Congress to ascertain information about demographics? The answer has to be the Necessary and Proper Clause. Yet, as it often does, the Court fails to cite the Necessary and Proper clause in an implied powers case.
4/ For example, Roberts cites the Legal Tender Cases (1871): "Congress has the power to use the census for information-gathering purposes." supreme.justia.com/cases/federal/… This case held that Congress has the implied power, through the N&P Clause, to require people to accept paper money 
5/ As proof of this broad scope of implied power, the Court noted that the gov also "collects of statistics respecting age, sex, and production.""Who questions the power to do this?"
6/ Roberts also cites Scalia's concurrence in Noel Canning (not Breyer's majority): this practice “has been open, widespread, and unchallenged since the early days of the Republic.”
7/ The Court's APA analysis has some important language for other challenges, including the DACA case. This sentence may appear in a DOJ motion after GVR tomorrow: "the choice between reasonable policy alternatives in the face of uncertainty was the Secretary’s to make"
8/ Roberts expressly rejects Breyer's position: Congress authorized the Secretary, and not the "technocratic" Bureau (read bureaucracy) to make the final decision. The act called for "value-laden decisionmaking and the weighing of incommensurables under conditions of uncertainty"
9/ Roberts makes two important points about agency actions taken based on mixed-motives. (1) "A court may not reject an agency’s stated reasons for acting simply because the agency might also have had other unstated reasons." (This would be a significant rule for DACA case)
10/ Roberts said (2) "a court may not set aside an agency’s policymaking decision solely because it might have been influenced by political considerations or prompted by an Administration’s priorities"
11/ I discuss the latter concept in "Presidential Maladministration." I refer to these flips as "presidential reversal." I argue that deference is only warranted when a delegation is ambiguous. papers.ssrn.com/sol3/papers.cf…
12/ Roberts finds that a "showing of bad faith or improper behavior" justified inquiring into “the mental processes of administrative decisionmakers.”
13/ Roberts agrees with District Court that "Secretary was determined to reinstate a citizenship question from the time he entered office" and "made up his mind" before he reviewed record.
14/ The next paragraph is very important. Roberts says "It is hardly improper for an agency head to come into office with policy preferences and ideas" - that process is not "defective." But the reasons given (DOJ request) is not sufficient. And other reasons could suffice.
15/ In other words, the fact that the Secretary made up his mind at the outset does not "forever taint" (so to speak) the decision. Given the "mixed motives" analysis above, the Secretary could cure the deficiency going forward.
16/ What would that cure be? @rickhasen and @Jennifer_Nou suggest that the Secretary could say he was doing it for "partisan reasons." slate.com/news-and-polit… Roberts specifically references "unstated considerations of politics" and "the legislative process"
17/ Roberts also litters the opinion with some chestnuts for future cases, that closely scrutinize extensive records. Here, he cites his former boss, Judge Friendly. "Our review is deferential, but we are 'not required to exhibit a naiveté from which ordinary citizens are free.'"
18/ And who was clerking for Judge Friendly in 1977. Merrick Garland of course. H/T @MikeLepage
19/ Ultimately, Roberts write that the Court cannot accept a "contrived reason." But, it can accept a "bad" reason. Does Ross bite the bullet and admit he added the question for political reasons? Cue the Take Care Clause suits.
20/ For example, the Secretary could provide this reason: States have asked us to provide citizen data to allow them to redistrict based on citizenship, rather than total population. We added the question to assist the states. Would Roberts reject that theory in light of Rucho?
21/ J. Thomas concurs in part, dissents in part, joined by Gorsuch and Alito. He faults Roberts, "for the first time ever" questioning the sincerity of the Secretary's actions. This "suspicion and distrust ... typifies modern discourse."
21/ Thomas, Kavanaugh, and Gorsuch say that Roberts's rule was an "unprecedented departure" and "would transform administrative law." We are all anti-administrativists now. yalejreg.com/nc/we-are-all-… @adamjwhitedc
22/ Thomas also writes about a much-discussed theme: "the presumption of regularity." He adds, "The Court pays only lipservice to this principle"
23/ To make this point more directly, the Secretary could say that states post-Evenwell expressed an interest in changing their laws to permit citizen-based redistricting, and in order to consider that option, they'd like citizen-level data.
24/ Thomas and Roberts do agree on a narrow point that should prove important: "an agency action is not arbitrary or capricious merely because the decisionmaker has other, unstated reasons for the decision." Here, the Secretary can come clean and state its unstated reason.
25/ Thomas also explains that a "pretext" could only render an action A&C if "agency’s stated rationale did not factor at all into the decision." This sort of mixed-motives analysis echoes my writings on Mueller and obstruction lawfareblog.com/special-counse…
26/ In a footnote, Thomas alludes to the lurking Equal Protection Clause issue, though he references the Free Exercise Clause. He writes that such a claim has nothing to do w/ A&C claim.
27/ Thomas reiterates the point that the Secretary may have bene motivated by "other unstated reasons." He adds that gov had "a variety of reasons." He adds, the Sec had "multiple reasons." I can see how this thread cobbles together five votes in September on remand.
28/ Thomas also dumps on "career employees" within the Census Bureau. Roberts also throws shade on the "technocratic' bureaucracy.
29/ OMG, Thomas described the "Pepe Silvia" meme from "Always Sunny." He could not deny that Judge Furman "could arrange those facts on a corkboard and—with a jar of pins and a spool of string—create an eye-catching conspiracy web"
30/ Here is the full passage from the Thomas opinion about the corkboard conspiracy web. If there were eve a time to insert a meme into the US Reports, this is it.
31/ Thomas closes with a note that the FCC's "Open Internet Order' would fail the majority's test. @AjitPaiFCC reported that the change was motivated by "one reason and one reason alone. President Obama told us to do so.”
32/ Thomas writes that "a serious case could be made that the Open Internet Order should have been invalidated as 'pretextual.'" And the "ultimate rational" was "contrived."
33/ I made that exact argument in Presidential Maladministration: that the Open Internet Plan was not entitled to deference because the "reversal" was"contrived" I called the doctrine, "Presidential Intrusion" papers.ssrn.com/sol3/papers.cf…
34/ Judge Janice Rogers Brown made a similar point in her dissent:
35/ Thomas writes that a "Pandora's Box" has been opened. "Opponents of future executive actions can be expected to make full use of the Court’s new approach."
36/ Thomas closes and says the majority's decision is "a ticket good for this day and this train only." This is a subtle nod to Bush v. Gore.
37/ Justice Breyer's partial dissent articulates the State Farm standard very differently than does Roberts: "he did not adequately consider whether the question was necessary or whether it was an appropriate means of achieving his stated goal."
38/ "Necessary and Appropriate" sounds a lot like "Congruent and Proportional," the Section 5 test. Breyer would import his usual preference for proportionality review into the A&C standard, transforming it into a form of heightened scrutiny.
39/ Roberts would treat the A&C standard as pre-Lee Optical rational basis scrutiny. That is, the gov must offer the actual reason they are acting, even if that reason is not the best reason. Critically, the Plaintiffs are able to rebut the stated rationale offered by the gov
40/ Stated differently, Breyer would adopt J. Peckham's Lochner majority. Roberts adopted Harlan's Lochner dissent. And Alito went full Holmes/Lee Optical: it doesn't matter what the real reason is.
41/ Critically, under pre-Lee Optical rational basis scrutiny, the government could have mixed motives, but so long as one of those justifications is rational, the action is lawful. That is "other unstated reasons."
42/ I addressed this mixed-motives concept with respect to rational basis review in "The Burden of Judging." papers.ssrn.com/sol3/papers.cf…
43/ Going forward, #SCOTUS gave the Trump Administration a chance to re-do the census question. In 2018, Judge Bates gave the administration a chance to re-do the DACA rescission. lawfareblog.com/daca-rescissio… Did they get it right? Alas, no. Let's see if they can take a hint here.
44/ There is indeed an overlap between the Census question and the DACA rescission. To quote Justice Breyer, "The agency’s decision memorandum provided one and only one reason."
45/ The majority opinion lays out a roadmap--offer several reasons, and see if one sticks. In other words, don't put eggs in one basket. Give the actual justification, among others, even if it may generate political backlash.
46/ Had the Secretary rescinded DACA because the policy was no longer desired by the administration, and nothing else, the APA claims would fail. By giving a legal justification that was contestable, courts have held up the policy for 2 years.
47/ J. Alito's dissent is a not-to-subtle reference to the proliferation of nationwide injunctions. He worries that motivated parties can forum shop until they find a judge who finds an executive action is pretextual.
48/ Alito also distinguishes APA challenges from constitutional challenges: in the latter, courts can inquire about pretext; in the former they cannot.
49/ DOJ asserted this position in the travel ban litigation: the President's decision to issue the proclamation was not reviewable under the APA, but it was reviewable under the Establishment Clause. #SCOTUS rejected the arg there.
50/ A few closing thoughts. I see Robert's decision in the census case as apiece his decision in the travel ban cases. In both cases, Roberts recognized that the stated defense of the policy was pretextual.
51/ But in Hawaii, the government was able to paper over a sufficient justification to defend the policy. As a result, the travel ban was constitutional. In contrast, the *only* reason offered for the census question was pretextual. The administration did not offer other reasons
52/ The way forward is clear: offer other reasons that are legitimate, and you will get 5 votes. Same for DACA. Offer other reasons that are legitimate, and the policy can be rescinded.
53/ I am going to end this thread here, and start a new one after the orders list tomorrow. @threadreaderapp unroll.
54/ Here is the complete thread on the census case: threadreaderapp.com/thread/1144274…
