In March 2018, Secretary of Commerce Wilbur Ross announced that his agency would include a citizenship question on the 2020 census in response to a request from the Justice Department, ostensibly to develop data for protection of voting rights. In lawsuits emanating from the agency’s determination, evidence was developed that, in fact, DOJ was asked to make the request by White House principals, including Steve Bannon. On March 14, 2019, in testimony before the House Committee on Oversight and Government Reform, Ross persisted in his justification, to the obvious disbelief of House committee members.
On March 15, SCOTUS announced that in April it would consider appeals from two federal district court decisions—one in New York and one in California—in which judges found that Commerce had violated provisions of the Administrative Procedures Act (APA). The California decision also found that inclusion of the citizenship question violated the Constitution’s census provision requirement to “enumerate” all persons and not to include a question that would suppress responses. The Court noted that the “citizenship question will scare off non-citizens and thereby damage the enumeration of persons required by the Constitution.” The New York court found that it “cannot sustain agency action founded on a pretextual or sham justification that conceals the true ‘basis’ for the decision.”
Earlier this month VoxFairfax explored the nuances of the mysterious deep state (Voyage to the Deep State, March 3), concluding that, in fact, the deep state is us, a part of our civic culture that mitigates against authoritarian action. One particular aspect unearthed in the bowels of the deep state was APA, which had been created in response to the explosion of New Deal agencies and crafted to regulate the manner and methods of promulgating and amending agency regulations.
The purposes of APA can be summarized as:
- requiring agencies to keep the public informed of their organization, procedures, and rules;
- providing for public participation in the rule-making process, e.g., through public commentary;
- establishing uniform standards for the conduct of formal rule-making; and
- defining the scope of judicial review.
In short, the scope of judicial review of APA requires that new regulations or amendments thereto not be arbitrary or capricious, nor an abuse of discretion. In addition, proposed rules or amendments must be based upon substantial evidence. Such deep state protections may frustrate the policies and actions of any executive branch that fails to adhere to stated principles. Thankfully, the nation had the foresight to create measures such as APA to protect our liberties and governmental processes. It’s one of those occasions where “big government” is welcome.
Two federal courts at opposite ends of our nation concluded similarly that the Secretary of Commerce violated APA and sought an end run around uniform standards for rule-making against deeply embedded principles of governance. A rescue from autocracy by a deep state function is a desirable outcome, however frustrating it may be to conspiracy accusers who are caught in the act of perverting principles for convenience or nefarious ends.
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