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
  • Supreme Court Blocks Census Citizenship Question: The U.S. Supreme Court has blocked the citizenship question from inclusion on the 2020 Census, upholding the result reached in a lower court. The Court ruled that the Commerce Department's decision to collect citizenship data "cannot be adequately explained" by the rationale provided by the agency. "Altogether, the evidence tells a story that does not match the explanation the Secretary gave for his decision," Chief Justice John Roberts wrote. Although the Court gave the Commerce Department a second chance to provide a "reasoned explanation" for the citizenship question, the government has said that it must begin printing forms by July 1—four days from now. EPIC is separately seeking to block the Census Bureau's collection of citizenship data because the agency has failed to complete required privacy impact assessments. A decision is expected soon from the D.C. Circuit. EPIC's case is EPIC v. Commerce, No. 19-5031 (D.C. Cir). EPIC also filed an amicus brief in the Supreme Court case, joined by 23 legal scholars and technical experts, warning that "collecting citizenship status information from hundreds of millions of U.S. residents presents enormous privacy and security concerns." EPIC said further "in failing to assess the risks that would result from the collection of personal data regarding citizenship status, the Census Bureau has violated its obligations under the E-Government Act." (Jun. 27, 2019)
  • In Amicus Brief, EPIC Urges Supreme Court to Remove Census Citizenship Question: EPIC filed an amicus brief in Department of Commerce v. New York, urging the Supreme Court to uphold a New York federal judge’s decision to remove the citizenship question from the 2020 Census. EPIC warned that “collecting citizenship status information from hundreds of millions of U.S. residents presents enormous privacy and security concerns.” EPIC described the history of census privacy, including EPIC’s 2004 FOIA lawsuit which revealed that the Census Bureau transferred data on Arab-Americans to the DHS after 9/11. EPIC also explained that, “in failing to assess the risks that would result from the collection of personal data regarding citizenship status, the Census Bureau has violated its obligations under the E-Government Act." In a related matter, EPIC’s lawsuit to block the citizenship question, EPIC v. Commerce, is currently before the D.C. Circuit with an argument scheduled for May 8. EPIC has charged that the Census Bureau failed to complete required Privacy Impact Assessments prior to the decisions to collect personal data about citizenship. The Bureau concedes that it must complete the impact assessments but has so far failed to do so. (Apr. 1, 2019)
  • 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 »
  • Trump Issues Executive Order To Seek Citizenship Information From All Federal Agencies » (Jul. 11, 2019)
    President Trump announced today that he will order federal agencies to transfer personal data to the Department of Commerce to determine the number of non-citizens in the United States. Trump stated, "We will utilize these vast federal databases to gain a full, complete, and accurate count of the non-citizen population including databases maintained by the Department of Homeland Security, and the Social Security Administration." President Trump has abandoned his quest to seek citizenship information on the 2020 Census after the Supreme Court ruled that the Commerce Department's decision to collect citizenship data "cannot be adequately explained" by the rationale provided by the agency. EPIC separately sought to block the Census Bureau's collection of citizenship data because the agency failed to complete required privacy impact assessments. Last month, the D.C. Circuit issued a decision in the case, ruling that EPIC did not have a legal basis to obtain Privacy Impact Assessments from the federal government. EPIC also filed an amicus brief in the Supreme Court case, joined by 23 legal scholars and technical experts, warning that "collecting citizenship status information from hundreds of millions of U.S. residents presents enormous privacy and security concerns." The federal Privacy Act also imposes limits on the ability of federal agencies to transfer personal data to other agencies. The DHS has previously stated that DACA applicant information would be used exclusively for the purposes for which it was provided.
  • BREAKING: Citizenship Question Dropped from 2020 Census » (Jul. 2, 2019)
    The Census Bureau has confirmed that it will not collect personal data concerning citizenship status on the 2020 Census. The Bureau has instead ordered census forms to be printed without the proposed citizenship question. The decision follows a ruling by the U.S. Supreme Court blocking the citizenship question over the government's failure to provide a "reasoned explanation" for collecting citizenship information. EPIC filed a separate lawsuit to block the Census Bureau's collection of citizenship data because the agency had failed to complete required privacy impact assessments. The D.C. Circuit reached a decision in EPIC's case last week. EPIC also filed an amicus brief in the Supreme Court case, joined by 23 legal scholars and technical experts, warning that "collecting citizenship status information from hundreds of millions of U.S. residents presents enormous privacy and security concerns."
  • EPIC v. Commerce: D.C. Circuit Rules Privacy Impact Assessments Not Available to the Public » (Jun. 29, 2019)
    The D.C. Circuit has issued a decision in EPIC v. Commerce, EPIC’s suit to halt the collection of citizenship data in the 2020 Census over the government’s failure to complete required Privacy Impact Assessments. Under the E-Government Act, federal agencies must make Privacy Impact Assessments “publicly available” before undertaking a new collection of personal data. Yet the D.C. Circuit ruled that the statute does not “vest a general right of information in the public” that would allow parties to obtain information about the government’s data collection practices. The court acknowledged that EPIC can sue on behalf of its members, but concluded that one of the leading privacy organizations in the country did not have a legal basis to obtain Privacy Impact Assessments from the federal government. EPIC may appeal the decision.
  • Supreme Court Blocks Census Citizenship Question » (Jun. 27, 2019)
    The U.S. Supreme Court has blocked the citizenship question from inclusion on the 2020 Census, upholding the result reached in a lower court. The Court ruled that the Commerce Department's decision to collect citizenship data "cannot be adequately explained" by the rationale provided by the agency. "Altogether, the evidence tells a story that does not match the explanation the Secretary gave for his decision," Chief Justice John Roberts wrote. Although the Court gave the Commerce Department a second chance to provide a "reasoned explanation" for the citizenship question, the government has said that it must begin printing forms by July 1—four days from now. EPIC is separately seeking to block the Census Bureau's collection of citizenship data because the agency has failed to complete required privacy impact assessments. A decision is expected soon from the D.C. Circuit. EPIC's case is EPIC v. Commerce, No. 19-5031 (D.C. Cir). EPIC also filed an amicus brief in the Supreme Court case, joined by 23 legal scholars and technical experts, warning that "collecting citizenship status information from hundreds of millions of U.S. residents presents enormous privacy and security concerns." EPIC said further "in failing to assess the risks that would result from the collection of personal data regarding citizenship status, the Census Bureau has violated its obligations under the E-Government Act."
  • EPIC Argues Against Collection of Citizenship Data in Federal Appeals Court » (May. 7, 2019)
    EPIC Counsel John Davisson will argue before the D.C. Circuit Court of Appeals Wednesday morning to block the Census Bureau from collecting personal data concerning citizenship status in the 2020 Census. The argument will begin around 10:00 a.m. ET and can be live streamed here. EPIC's case challenges the Census Bureau's failure to complete privacy impact assessments required by law. The Bureau concedes that it must complete the impact assessments but has so far failed to do so. As EPIC previously warned the appeals court, "major privacy risks have not been addressed by the agency." EPIC has filed several successful lawsuits to require privacy impact assessments by federal agencies, including EPIC's case that led a now-defunct Presidential Commission to delete state voter data it unlawfully obtained. EPIC's census privacy case is EPIC v. Commerce, No. 19-5031 (D.C. Cir.).
  • EPIC to Appropriations Committees: Suspend the Census Citizenship Question » (Apr. 29, 2019)
    EPIC has sent a statement to the House Appropriations Committee prior to a hearing on Census oversight. EPIC urged Congress to require the Census Bureau to remove the citizenship question from the 2020 census, pending the completion and review of required Privacy Impact Assessments. EPIC told the Committee that the Census Bureau failed to complete the Privacy Impact Assessments required by Section 208 of the E-Government Act. The Census Bureau concedes that it must complete the impact assessments but has so far failed to do so. "Congress made clear that data collection simply could not occur without the completion of these assessments," EPIC explained to Congress. In EPIC v. Commerce, currently before the D.C. Circuit Court of Appeals, EPIC argued that the collection of personal data concerning citizenship status without the privacy impact assessments is unlawful. EPIC warned the federal appeals court that "major privacy risks have not been addressed by the agency."
  • Supreme Court to Hear Arguments on Census Citizenship Question » (Apr. 22, 2019)
    The U.S. Supreme Court will hear arguments this week in a case challenging the addition of the citizenship question to the 2020 Census. EPIC filed an amicus brief in Department of Commerce v. New York, urging the Court to uphold a New York federal judge's decision to remove the question. EPIC warned that the "extraordinary reach of the Bureau into the private lives of Americans brings extraordinary risks to privacy." In a related matter, EPIC's lawsuit to block the citizenship question, EPIC v. Commerce, is currently before the D.C. Circuit with an argument scheduled for May 8. EPIC has charged that the Census Bureau failed to complete required Privacy Impact Assessments prior to the decisions to collect personal data about citizenship. The Bureau concedes that it must complete the impact assessments but has so far failed to do so. EPIC told the D.C. Circuit, "Key deadlines are fast approaching, and major privacy risks have not been addressed by the agency."
  • EPIC to Appropriations Committees: Suspend the Census Citizenship Question » (Apr. 3, 2019)
    EPIC has sent a statement to the House and Senate regarding the FY2020 appropriations for the Department of Commerce. EPIC urged Congress to require the Census Bureau to remove the citizenship question from the 2020 census, pending the completion of legally required Privacy Impact Assessments. EPIC told the committees that the Census Bureau failed to complete the Privacy Impact Assessments required by Section 208 of the E-Government Act. The Census Bureau concedes that it must complete the impact assessments but has so far failed to do so. "Congress made clear that data collection simply could not occur without the completion of these assessments," EPIC explained to Congress. In EPIC v. Commerce now before the D.C. Circuit Court of Appeals, EPIC argued that the collection of citizenship data without the privacy impact assessments is unlawful. EPIC warned the federal appeals court that, "major privacy risks have not been addressed by the agency."
  • In Amicus Brief, EPIC Urges Supreme Court to Remove Census Citizenship Question » (Apr. 1, 2019)
    EPIC filed an amicus brief in Department of Commerce v. New York, urging the Supreme Court to uphold a New York federal judge’s decision to remove the citizenship question from the 2020 Census. EPIC warned that “collecting citizenship status information from hundreds of millions of U.S. residents presents enormous privacy and security concerns.” EPIC described the history of census privacy, including EPIC’s 2004 FOIA lawsuit which revealed that the Census Bureau transferred data on Arab-Americans to the DHS after 9/11. EPIC also explained that, “in failing to assess the risks that would result from the collection of personal data regarding citizenship status, the Census Bureau has violated its obligations under the E-Government Act." In a related matter, EPIC’s lawsuit to block the citizenship question, EPIC v. Commerce, is currently before the D.C. Circuit with an argument scheduled for May 8. EPIC has charged that the Census Bureau failed to complete required Privacy Impact Assessments prior to the decisions to collect personal data about citizenship. The Bureau concedes that it must complete the impact assessments but has so far failed to do so.
  • Second Court Blocks Census Citizenship Question » (Mar. 6, 2019)
    A federal court in California has blocked the Census Bureau from adding a citizenship question to the 2020 Census, becoming the second court to do so. The court found that the Bureau made an arbitrary decision to include the citizenship question, then engaged in a "cynical search to find some reason, any reason" to "justify that preordained result." A federal court in New York recently blocked the citizenship question in a different case, but the Supreme Court is set to review that decision. In EPIC v. Commerce, EPIC alleges that the Bureau failed to conduct and publish required privacy impact assessments before making an uninformed decision to collect citizenship data. EPIC is seeking an injunction from the D.C. Circuit, which will hear arguments in the case in May. EPIC's appeal is EPIC v. Commerce, No. 19-5031 (D.C. Cir.).
  • EPIC Files Opening Brief in Appeal to Block Census Citizenship Question » (Mar. 2, 2019)
    EPIC has filed an opening brief in the appeal to block the Census Bureau from collecting citizenship data in the 2020 Census. EPIC told the D.C. Circuit that the Census Bureau failed to complete privacy impact assessments required by law. “This uninformed data collection by a federal agency is precisely what the E-Government Act prohibits,” EPIC explained. The Bureau concedes that it must complete the impact assessments but has so far failed to do so. EPIC warned the federal appeals court that “major privacy risks have not been addressed by the agency.” 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 appeal is EPIC v. Commerce, No. 19-5031 (D.C. Cir.).
  • Arguments Set for EPIC Appeal to Block Census Citizenship Question » (Feb. 26, 2019)
    The D.C. Circuit has scheduled oral argument for May in EPIC's expedited appeal to block the Census Bureau from collecting citizenship information in the 2020 Census. EPIC alleges that the Bureau failed to complete privacy impact assessments required by the E-Government Act before adding the question. A lower court denied EPIC's motion for a preliminary injunction, agreeing that the Bureau is required to conduct the detailed assessments, but oddly concluding that it is not required to do so "until the Bureau mails its first batch of Census questionnaires to the public"—a view entirely at odds with the relevant law. A federal court in New York recently blocked the citizenship question in a different case, but the Supreme Court will now review that decision. 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 appeal is EPIC v. Commerce, No. 19-5031 (D.C. Cir.).
  • EPIC Seeks Early Argument in Appeal to Block Census Citizenship Question » (Feb. 21, 2019)
    EPIC has asked the D.C. Circuit Court of Appeals to hold oral argument by April in EPIC v. Commerce, EPIC's expedited appeal to block the Census Bureau from collecting citizenship information in the 2020 Census. EPIC alleges that the Bureau failed to complete privacy impact assessments required by the E-Government Act before adding the question. A lower court denied EPIC's motion for a preliminary injunction, agreeing that the Bureau is required to conduct the detailed assessments, but oddly concluding that it is not required to do so "until the Bureau mails its first batch of Census questionnaires to the public"—a view entirely at odds with the relevant law. A federal court in New York recently blocked the citizenship question in a different case, but the Supreme Court will now review that decision. 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 appeal is captioned EPIC v. Commerce, No. 19-5031 (D.C. Cir.).
  • Supreme Court to Hear Dispute over Census Citizenship Question » (Feb. 15, 2019)
    The Supreme Court has agreed to hear the government's appeal of New York v. Department of Commerce, in which a New York federal judge blocked the government from asking a citizenship question on the 2020 Census. EPIC filed an amicus brief in the case. EPIC has also sued to block the citizenship question in EPIC v. Commerce. EPIC alleges that the Bureau failed to complete privacy impact assessments before adding the question. A lower court held that the Bureau must "prepare PIAs that adequately address the collection of citizenship data in the 2020 Census," but denied a preliminary injunction. EPIC has appealed the decision.
  • 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. Supreme Court

U.S. Department of Commerce v. New York, No. 18-966

Merits Stage

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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