Professor Rohlf Cited in NY District Court Census Decision

An article written by Professor Dan Rohlf was cited in a significant census decision issued by U.S. District Court Judge Jesse Furman in New York this month. Judge Furman concluded in his 277-page opinion that it is unlawful for Commerce Secretary Wilbur Ross to add a question asking about U.S. citizenship to the 2020 census.

This decision arrives a time fraught with political controversy  surrounding immigration in the U.S., and the move to include the question is seen by many on the left as an attempt by the Trump Administration to divide the country further.

Rohlf’s article, Avoiding the ‘Bare Record’: Safeguarding Meaningful Judicial Review of Federal Agency Action”, 35 Ohio N. L. Rev. 575, 615 (2009) was cited by Judge Furman to show that administrative records compiled and submitted by the agency may not always include  the “whole record,” and thus a court order requiring an agency to “complete” the record is not the same thing as ordering “discovery” of material beyond the record.

In his review of case law, Rohlf discovered that courts are not always careful to differentiate “completing” the administrative record, “supplementing” the administrative record, and authorizing “extra-record” discovery. However, the concepts are legally distinct.

Thus it is within the power of the court to see beyond the administrative record submitted by the agency to find that an agency has acted in “bad faith.”

Citing John Adams, Judge Furman  concluded “Secretary Ross’s decision to add a citizenship question to the 2020 census — even if it did not violate the Constitution itself — was unlawful for a multitude of independent reasons and must be set aside. To conclude otherwise and let Secretary Ross’s decision stand would undermine the proposition — central to the rule of law — that ours is a ‘government of laws, and not of men.’”

Judge Furman told NPR that he expects his order to ultimately reach the Supreme Court, after predicting that the Trump Administration would file a request for appeal in the 2nd U.S. Circuit Court of Appeals.