New York, et al. v. Department of Commerce, et al. (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
  • 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 »
  • In Amicus Brief, EPIC Opposes Citizenship Question in 2020 Census » (Oct. 30, 2018)
    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.
  • EPIC Urges Removal of Citizenship Question on 2020 Census » (Oct. 3, 2018)
    In advance of the nomination hearing for the Census director, EPIC has sent a statement to a Senate committee urging the Census Bureau to suspend the citizenship question in the 2020 Census until a Privacy Impact Assessment is conducted. The administration conceded that the question was added at the request of the Justice Department, but EPIC explained that census data should never be used for law enforcement because that would undermine the constitutional purpose and the integrity of the census. An earlier Privacy Impact Assessment preceded the addition of the citizenship question. EPIC said that assessment does not meet the agency standards and that the Census is required by law to conduct a revised assessment. Through a Freedom of Information Act request, EPIC obtained documents (part 1, part 2, part 3, part 4) concerning Commerce Secretary Wilbur Ross and the citizenship question. The census raises significant privacy risks and was used to target Japanese-Americans for internment during World War II. EPIC previously obtained documents which revealed that the Census Bureau transferred the personal data of Muslim Americans to DHS after 9-11. As a consequence of EPIC's lawsuit, the Census Bureau revised its policy on disclosing statistical information about "sensitive populations" to law enforcement and intelligence agencies. EPIC also opposed the addition of the citizenship question in recent comments to the U.S. Census Bureau.
  • EPIC Opposes Citizenship Question on 2020 Census » (Aug. 8, 2018)
    In comments to the U.S. Census Bureau, EPIC opposed the agency's decision to add a citizenship question to the 2020 census. The administration's stated purpose for the question is to assist the DOJ, but EPIC argued that census data should never be used for enforcement purposes because collecting data to enforce laws will interfere with the census's constitutional purpose and will undermine the integrity of the census. The Bureau earlier conducted a Privacy Impact Assessment for the census, but it did not acknowledge the privacy risks raised by the recently added citizenship question. EPIC said the assessment does not meet the Commerce Department's standards and that it is required to conduct a revised assessment, analyzing the privacy risks created by the citizenship question. Through a Freedom of Information Act request, EPIC obtained documents (part 1, part 2, part 3, part 4) concerning Commerce Secretary Wilbur Ross and the citizenship question. The census raises significant privacy risks and was used to target Japanese-Americans for internment in World War II. EPIC previously obtained documents which revealed that the Census Bureau transferred the personal data of Muslim Americans to DHS after 9-11. As a consequence of EPIC's lawsuit, the Census Bureau revised its policy on disclosing statistical information about "sensitive populations" to law enforcement and intelligence agencies.
  • Legal Challenge to Citizenship Question on Census Moves Forward » (Jul. 27, 2018)
    A federal judge ruled that lawsuits challenging the Trump administration's decision to add a question on citizenship status to the 2020 census could move forward. The court rejected the administration's claim that the plaintiffs lacked standing and ruled that it was "plausible" that the decision was motivated by racial animus and would result in a discriminatory effect on immigrant communities. Through a Freedom of Information Act request, EPIC obtained documents (part 1, part 2, part 3, part 4) considered by Commerce Secretary Wilbur Ross to add the citizenship question. The census raises significant privacy risks and has been used to discriminate. EPIC previously obtained documents which revealed that the Census Bureau transferred the personal data of Muslim Americans to DHS after 9-11.
  • EPIC FOIA: EPIC Obtains Documents About Decision to Add Census Citizenship Question » (Jun. 11, 2018)
    Through a Freedom of Information Act request, EPIC has obtained documents (part 1, part 2, part 3, part 4) considered by Commerce Secretary Wilbur Ross to add a citizenship question to the 2020 Census. Following a request from the Department of Justice, the Census Bureau announced that it would ask about citizenship status for the first time in over 50 years. The documents obtained by EPIC, and others who made similar requests, reflect the varying opinions from lawmakers, scientists, and immigration groups about the proposal. The documents also reveal that Kris Kobach, former Vice Chair of the now-defunct Presidential Advisory Commission on Election Integrity, urged Secretary Ross "on the direction of Steve Bannon" to add the citizenship question. According to an analysis conducted by the Census Bureau, the impact of asking about citizenship would be "very costly, harms the quality of the census count, and would use substantially less accurate citizenship data than are available" from other government resources. In a FOIA case against DHS, EPIC previously obtained documents which revealed that the Census Bureau transferred the personal data of Muslim Americans to the Department of Homeland Security after 9-11. As a consequence, the Census Bureau revised its policy on sharing statistical information about "sensitive populations" with law enforcement or intelligence agencies.
  • EPIC Tells Congress to Consider Census Privacy Risks » (Jun. 8, 2018)
    In advance of a hearing on the 2020 Census, EPIC told Congress to consider the privacy issues arising from potential misuse of Census data. After the Department of Commerce announced that the 2020 Census will include a question on citizenship status, many have expressed concerns about the confidentiality of the data collected. EPIC told Representatives: "your committee should ensure that the data collected by the federal government is not misused." The census raises significant privacy risks and has been used to discriminate. EPIC previously obtained documents which revealed that the Census Bureau transferred the personal data of Muslim Americans to the Department of Homeland Security after 9-11. As a consequence, the Census Bureau revised its policy on disclosing statistical information about "sensitive populations" to law enforcement or intelligence agencies. Customs and Border Protection also changed its policy on requesting "information of a sensitive nature from the Census Bureau."
  • EPIC Tells Congress to Consider Census Privacy Risks » (May. 8, 2018)
    In advance of a hearing on the 2020 Census, EPIC told Congress to consider the privacy issues arising from potential misuse of Census data. After the Department of Commerce announced that the 2020 Census will include a question on citizenship status, many have expressed concerns about the confidentiality of the data collected. EPIC told Representatives: "your committee should ensure that the data collected by the federal government is not misused." The census raises significant privacy risks and has been used to discriminate. EPIC previously obtained documents which revealed that the Census Bureau transferred the personal data of Muslim Americans to the Department of Homeland Security after 9-11. As a consequence, the Census Bureau revised its policy on sharing statistical information about "sensitive populations" with law enforcement or intelligence agencies. Customs and Border Protection also changed its policy on requesting "information of a sensitive nature from the Census Bureau."
  • EPIC Tells Congress to Consider Census Privacy Risks » (Apr. 17, 2018)
    In advance of a hearing on the Census Bureau, EPIC told Congress to consider the privacy issues arising from potential misuse of Census data. After the Department of Commerce announced that the 2020 Census will include a question on citizenship status, many have expressed concerns about the confidentiality of the data collected. EPIC told Representatives: "your committee should ensure that the data collected by the federal government is not misused." The census raises significant privacy risks and has been used to discriminate. EPIC previously obtained documents which revealed that the Census Bureau transferred the personal data of Muslim Americans to the Department of Homeland Security after 9-11. As a consequence, the Census Bureau revised its policy on sharing statistical information about "sensitive populations" with law enforcement or intelligence agencies. Customs and Border Protection also changed its policy on requesting "information of a sensitive nature from the Census Bureau."
  • 2020 US Census to Include Citizenship Question, Senators Introduce Bill to Block » (Mar. 27, 2018)
    The Department of Commerce announced that the 2020 census will include a question on citizenship status. The decennial census has not included a citizenship question since 1950. Critics argue that the question will result in unreliable data collection and skew census results. Senator Menendez (D-NJ) has introduced S. 2580, a bill that would prohibit the census from including a citizenship question. Last week EPIC submitted a Freedom of Information Act request seeking documents on the Department's consideration of the many complicated issues related to the question. The census raises significant privacy risks. EPIC previously obtained documents which revealed that the Census Bureau transferred the personal data of Muslim Americans to DHS after 9-11.
  • EPIC FOIAs Commerce Department about Citizenship Question on 2020 Census » (Mar. 22, 2018)
    EPIC has submitted an urgent Freedom of Information Act request to the Department of Commerce seeking information about a proposed citizenship question on the 2020 census. Secretary Wilbur Ross stated today that the Department of Commerce will make a decision as to whether to include the controversial question in the 2020 census by March 31. Secretary Ross also said, “there are probably 15 or 20 different very complicated issues involved in the request.” EPIC specifically requested information about these issues. The census raises significant privacy risks. EPIC previously obtained documents which revealed that the Census Bureau transferred the personal data of Muslim Americans to DHS after 9-11.

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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