How Should the Law Address Illicit Motives in the Age of Trump?

Until late last week, the Supreme Court was preparing to hear oral argument in a case presenting the question whether Federal District Judge Jesse Furman erred by ordering discovery outside of the administrative record to discern the motives behind the Trump administration’s decision to add a question concerning citizenship to the 2020 census. In an unusual move, the Court had agreed to hear the discovery dispute last November—before Judge Furman had completed his consideration of the merits. In the interim, he conducted a trial.Last week, Judge Furman issued a 277-page opinion setting forth his findings of fact and conclusions of law. That opinion concludes that Secretary of Commerce Wilbur Ross committed multiple violations of the Administrative Procedure Act (APA). It enjoins the government from including a citizenship question on the census, at least absent substantial additional administrative homework. Notably, Judge Furman made his APA ruling “without relying on extra-record evidence.” Accordingly, the plaintiffs asked the Supreme Court to dismiss the discovery dispute as moot. The Court quickly responded by removing the case from the oral argument calendar and suspending briefing.The census case as a whole may well return to the high Court’s docket for consideration of the merits of Judge Furman’s finding of an APA violation. As his opinion observes, “the integrity of the census is a matter of national importance,” because “the population count has massive and lasting consequences.” Thus, yesterday the Solicitor General declared his intention to seek expedited review so that the high Court can resolve the merits before it recesses at the end of June.Meanwhile, the mooted issue warrants further consideration. In the balance of this column, I first explain why certain sorts of government motive questions are vexing in general; I then ask whether the calculus should shift due to the pervasive bad faith of the Trump administration.The Legal Relevance of MotiveIn its petition to the Supreme Court last fall, the government contended that the discovery dispute in the census case presented the question of the circumstances under which a district court may allow discovery outside the administrative record in order to “probe the mental processes of the agency decisionmaker.” That is a procedural question, but it connects to a more fundamental substantive one: When does the mental state of a government actor affect the legality of the government’s action?We know that the answer is not never. For example, under longstanding precedents interpreting the constitutional principle of equal protection, a facially neutral law or policy that has a disparate impact based on some illicit criterion (such as race or sex) will be subject to heightened judicial scrutiny if the government adopted the law or policy for the purpose of discriminating based on that illicit criterion. As the Supreme Court pithily explained in a 1979 case, the question in such a case is whether “the decisionmaker . . . selected or reaffirmed a particular course of action at least in part ‘because of,’ not merely ‘in spite of,’ its adverse effects upon an identifiable group.