July 17, Lackland Bloom, an SMU law professor, for a piece that offers context and commentary on the SCOTUS ruling against the Trump Administration regarding a citizenship question in the Census. Published online in the Orange County Register: http://bit.ly/2StdNQE
In the much publicized case of Department of Commerce v New York (the Census Case), decided on the final day of the Supreme Court’s most recent term, the Court, by a 5-4 vote, decided that the Secretary of Commerce could not add a question pertaining to citizenship to the 2020 census.
As with most Supreme Court decisions, media coverage focused on the specific result in the case, which was seen, and celebrated by many, as a defeat for President Trump. The result in the case may or may not have long term significance.
However, the case presented the Court with a very important opportunity of which it failed to take advantage. The majority invalidated the addition of the citizenship question to the census on the ground that the Secretary of Commerce’s explanation for the addition of the question, aiding in enforcement of the Voting Rights Act, was pretextual.
By Lackland H. Bloom
In the much publicized case of Department of Commerce v New York (the Census Case), decided on the final day of the Supreme Court’s most recent term, the Court, by a 5-4 vote, decided that the Secretary of Commerce could not add a question pertaining to citizenship to the 2020 census.
As with most Supreme Court decisions, media coverage focused on the specific result in the case, which was seen, and celebrated by many, as a defeat for President Trump. The result in the case may or may not have long term significance.
However, the case presented the Court with a very important opportunity of which it failed to take advantage. The majority invalidated the addition of the citizenship question to the census on the ground that the Secretary of Commerce’s explanation for the addition of the question, aiding in enforcement of the Voting Rights Act, was pretextual.
The case presented the Court with the opportunity to reaffirm the long standing principle that a legitimate legislative or administrative purpose or explanation for legislation or for administrative action may not be impeached by proof of an illegitimate motive. Until quite recently, this principle has been well understood and respected.
Chief Justice John Roberts writing for the majority came close to recognizing the principle. He acknowledged that “judicial inquiry into ‘executive motivation’ represents ‘a substantial intrusion’ into the workings of another branch of the Government and should normally be avoided.” He should have said should “always” be avoided.
He also indicated that a court may not set aside an agency decision because it was based on unstated reasons, including political considerations. However, he then made an exception for “bad faith decisions” which ultimately led the majority to conclude that the Secretary’s reliance on the Voting Rights Act was pretextual, i.e, not the real reason for the decision.
As Justice Clarence Thomas explained in dissent this opened the door to allegations of “pretext, deceit and illicit motives” in virtually every case. Justice Thomas noted that the basis on which the majority invalidated the order was unprecedented. Justice Samuel Alito dissenting would have reached the same result as Justice Thomas on the ground that the statute in question gave the Secretary broad and unreviewable discretion to add questions to the census. Justice Alito was clearly correct on the facts before the Court, and perhaps that’s how the case should have been decided, however his approach would have failed to resolve the larger issue of the relevance of motive to judicial review.
The census case gave the Court the opportunity to declare that legislative or administrative motive should never be permitted to impeach a legitimate public purpose. Perhaps intimidated by the media furor surrounding the case, the Court permitted the opportunity to slip through its fingers. Throughout most of American history, the Supreme Court has refused to invalidate an otherwise valid law on the ground that some of the legislators who voted for it did so for improper motives.
The Supreme Court endorsed this doctrine in the great case of Fletcher v Peck decided in 1810. There, the Georgia legislature had sold the land which now constitutes Alabama and Mississippi to land speculators at a bargain price after having been bribed to so vote by the speculators. An attempt was then made to invalidate a subsequent sale of a portion of the land to a holder in due course on the grounds that the original grant having been obtained by bribery was null and void.
Chief Justice John Marshall writing for a unanimous Supreme Court refused to consider the illicit motives of the Georgia legislature as reason to invalidate the law and hence the subsequent sale. The Court concluded that Georgia clearly had the authority to sell the land. Marshall declared that “[i]t may well be doubted how far the validity of a law depends on the motives of its framers.”
The Court has generally followed the principles of Fletcher v Peck in rejecting challenges based on legislative motives with the exception of a few Establishment Clause cases and some recent opinions of Justice Anthony Kennedy in the area of gay rights. The Court has allowed slightly greater opportunity to impeach administrative action with proof of bad motives but not much. As Chief Justice Roberts recognized in the Census Case, there is a strong presumption against consideration of administrative motive to impeach legitimate purpose.
In either context, allowing proof of illicit motive to undermine legitimate purpose is a bad idea.
With a multi-member body, as Chief Justice Marshall recognized in Fletcher v Peck, there will inevitably be questions as to how many legislators needed to act with bad motives to invalidate the law. Is it enough if one, many, or a majority? In Fletcher, apparently all members of the Georgia legislature were bribed to authorize the sale but for the unanimous Court, even that was insufficient.
Perhaps the most serious problem with motive review is that it creates severe separation of powers issues by unleashing federal judges to intrude deeply into the legislative, executive and administrative process in search of illicit motive for otherwise legitimate action.
In addition, striking down legislation or administrative action on the basis of illicit motive will result in the invalidation of much significant and necessary law.
It is likely that once legislators and administrators recognize that the courts may examine motivation carefully, they are likely to be more circumspect in what they say though not necessarily what they think.
Finally, as Justice Thomas noted in his dissent in the Census Case, approval of motive based challenges will almost inevitably lead to much harassing and intrusive litigation capable of halting or at least delaying whatever legislation or administrative action determined litigants are prepared to challenge.
As Chief Justice Marshall recognized for a unanimous Supreme Court in Fletcher v Peck, early in the nation’s history, permitting federal courts to impeach legitimate purpose with proof of illicit motive is a truly bad practice. In the recent Census Case, the Supreme Court passed up the opportunity to signal an end to this tactic once and for all.
Lackland H. Bloom is a constitutional law professor and Larry and Jane Harlan Senior Research Fellow at SMU’s Dedman School of Law