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1/ The various challenges to the census question show an important dichotomy between the APA and the Constitution. The APA doesn't actually care about an agency's (or agency personnel's) real, subjective motivation for engaging in certain actions, but Equal Protection Clause does
2/ This is perhaps best demonstrated by FOIA Exemption (b)(5) and the deliberative process privilege. "Pre-decisional" agency documents reflecting internal debates and discussions that occurred during deliberations over agency action are generally exempt from disclosure.
3/ The theory is that agency debate and analysis should be free, robust, and uninhibited. Put differently, the theory is that agency policy is best made in darkness, free from public criticism or scrutiny and somewhat insulated from immediate outside political pressure.
4/ The agency's pre-decisional documents are protected from disclosure, even after the fact (at least for 25 years). The actual decisionmaking process leading up to the agency's action isn't seen as relevant, even though FOIA's whole point is to allow public oversight of gov't
5/ When a court determines the validity of agency action under the APA, it typically isn't trying to judge the agency's "real" reasons, but rather the rationales the agency offered at the time it took the action itself. This is consistent w/ Chenery I's main holding:
6/ Chenery held that when an agency defends its actions under the APA, it may rely only on the explanations it gave at the time of the action (i.e., the explanation and justification in the Notice of Final Rulemaking), and not other, after-the-fact rationales.
7/ As the "hard look" doctrine evolved in cases like Overton Park, the Court held that agency action could be vacated and remanded if the agency didn't take into account relevant data, failed to address important considerations, or didn't have a valid explanation for its acts.
8/ But all of this analysis is based on the stylized "official" explanation of the agency's reasoning, rather than attempting to ascertain what staff or officials "really" thought, knew, or considered within the agency itself.
9/ Equal Protection concerns are subject to no such constraint, however. Government action taken for a racially invidious purpose, that would not have been taken but for that purpose, is unconstitutional under the 5th Amendment's Equal Protection component, regardless of the APA
10/ Unlike an ordinary APA case, for an Equal Protection challenge, we actually do care about the relevant government actor's true motive for acting, and whether race was a "but for" cause of the challenged act.
11/ One of the main distinctions between the Census case and the Travel Ban case is that the motives of different executive branch actors were in play. With the Census, the ultimate issues are whether the Secretary of Commerce approved the question for discriminatory reasons...
12/ ...and, to a lesser extent, even if he were partly motivated by improper racial considerations, whether he had other reasons for adding the citizenship question such that he would've reached the same conclusion even absent invidious motives (cf. Arlington Heights)
13/ With the Travel Ban, one of the main questions concerns the motives of the President himself. The separation of powers concerns in both ordering discovery directly against the President and invalidating Presidential acts based on judgments about his/her subjective motive...
14/ …are arguably much more substantial than when talking about Executive appointees, and certainly far greater than when talking about rank-and-file executive personnel.
I clarify this point below, but by "Equal Protection Clause" (which applies only against the States), I was intending to include the Equal Protection component of the Fifth Amendment under Bolling v. Sharpe, which applies to the federal government, as well.
15/ If you care about Election Law, or even constitutional law more broadly, you better know your Administrative Law and Statutory Interpretation. Better yet, just go to #FSUCollegeofLaw and take my Leg-Reg, Election Law, and Federal Courts courses.
