"WHAT IS THE COST OF LIES?":

[T]here is ample proof that Ross asked the Justice Department to devise a reason--any reason--for the 2020 census to incorporate a citizenship question. When it initially failed to do so, he threatened to pull rank and call in then-Attorney General Jeff Sessions. Eventually, DOJ officials crafted an unpersuasive letter explaining why a citizenship question would aid VRA enforcement.

This mad scramble for pretext created a legal problem. Under the Administrative Procedure Act, any agency action that is "arbitrary and capricious" violates the law. Moreover, at a minimum, an agency must "disclose the basis" of its action so courts can review its legality. In the key section of his decision on Thursday, Roberts wrote that a district court was correct to hold that Ross failed to disclose the real basis of his action here. He reviewed all the evidence gathered by the district court, including discovery that went beyond the administrative record--"which showed, among other things, that the VRA played an insignificant role in the decisionmaking process." Roberts explained:

The record shows that the Secretary began taking steps to reinstate a citizenship question about a week into his tenure, but it contains no hint that he was considering VRA enforcement in connection with that project. The Secretary's Director of Policy did not know why the Secretary wished to reinstate the question, but saw it as his task to "find the best rationale." The Director initially attempted to elicit requests for citizenship data from the Department of Homeland Security and DOJ's Executive Office for Immigration Review, neither of which is responsible for enforcing the VRA. After those attempts failed, he asked Commerce staff to look into whether the Secretary could reinstate the question without receiving a request from another agency. The possibility that DOJ's Civil Rights Division might be willing to request citizenship data for VRA enforcement purposes was proposed by Commerce staff along the way and eventually pursued.

Even so, it was not until the Secretary contacted the Attorney General directly that DOJ's Civil Rights Division expressed interest in acquiring census-based citizenship data to better enforce the VRA. And even then, the record suggests that DOJ's interest was directed more to helping the Commerce Department than to securing the data.

"Altogether, the evidence tells a story that does not match the explanation the Secretary gave for his decision," Roberts concluded. "We are presented, in other words, with an explanation for agency action that is incongruent with what the record reveals about the agency's priorities and decisionmaking process."

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