With Department of Commerce v. New York, the Trump administration continues its losing streak in court under the Administrative Procedure Act. Many have ascribed this poor record to some combination of incompetence, vacancies, and a greater interest in tweeting policies, rather than implementing them. In this case, the government lost because it invoked a rationale that was simply implausible: It needed to add a census-citizenship question to enforce the Voting Rights Act. But the record was painfully clear that Secretary of Commerce Wilbur Ross had clumsily manufactured this story — cajoling the Department of Justice to make the request. The Supreme Court thus affirmed the district court and remanded the case back to the agency.
Chief Justice John Roberts, for a fractured court, upheld the plaintiffs’ standing, the suit’s reviewability, and Ross’ constitutional and statutory authority to include the citizenship question. But when it came to APA arbitrariness review, Roberts was Solomonic. On the one hand, he agreed with the conservatives that the agency had not been arbitrary under the traditional standards: The secretary “considered the relevant factors, weighed risks and benefits, and articulated a satisfactory explanation for his decision.” On the other hand, Roberts sided with the liberals in concluding that, nevertheless, the agency’s action was ultimately arbitrary because its “sole” voting-rights-related reason was pretextual.
But is there a proper role for pretext in administrative law? It would be easy to interpret the Supreme Court’s answer as a firm no. Agencies, in this view, must reveal their genuine motivations to survive judicial review. This case hardly stands for the proposition, however, that bureaucratic honesty is the best policy. Agencies can still give reasons that obfuscate the political machinations behind them. In Roberts’ words, “a court may not set aside an agency’s policymaking decision” only because it was informed by unstated “political considerations or prompted by an Administration’s priorities.” To the contrary, he continues, “typical” agency decisions can and do rest on both “stated and unstated” reasons.
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