The decennial Census is a high-stakes feat. It informs government spending, business planning, and congressional apportionment. No wonder the Census Bureau takes such great pains with each question. After all, when you ask only ten questions or so, you’ve got to make them count (pun intended). You can almost hear the bureaucratic hand-wringing in the agency’s requests for public comment: how should we word questions about race and Hispanic origin? Can we gather this information effectively through handheld computers, or through the internet? How will our “dress rehearsals” for collecting all this data go? For good reason, the Bureau engages in extensive survey pre-testing during the decade before show time. Census staffers must be an anxious lot.

One wonders, then, how Commerce Secretary Wilbur Ross—in a memorandum directing the Bureau to include a question on citizenship—could puzzle about whether a “mechanism” exists for learning about possible non-response rates. He is either seriously misinformed about how the Census Bureau usually works (troubling) or doesn’t care (also troubling). Ross’ claim that testing from the long-form American Community Survey, which already contains a citizenship question, is good enough also stretches credulity. You don’t have to be an expert demographer to know that different surveys with different functions, contents, formats, lengths, consequences, and visibilities are going to produce different response rates.

The point of this post, however, isn’t to wade into survey methodology, but instead to consider what is happening at the Census Bureau from the perspective of administrative law. Like any agency, the Bureau is subject to the Administrative Procedure Act (APA), as well as lesser-known statutes like the Paperwork Reduction Act and the Data Quality Act (more on these below). The APA requires that agencies refrain from acting in ways that are “arbitrary and capricious.” Put differently, agencies must give credible reasons for their decisions grounded in expertise. Judge Leventhal of the D.C. Circuit has put the standard more colorfully: look out for “danger signals” that the agency has not really taken the problem seriously. In this view, courts should try to smoke out politicized intent unmoored from the available evidence (or lack thereof). Different judges can disagree on what these signals are, but in this case, they can take their pick:

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