NOTICE: This opinion is subject to
formal revision before publication in the preliminary print of the
United States Reports. Readers are requested to notify the Reporter
of Decisions, Supreme Court of the United States, Washington,
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															SUPREME COURT OF THE UNITED STATES

															_________________

															No. 18–966

															_________________

															DEPARTMENT OF COMMERCE, et al., PETITIONERS v. NEW YORK, et al.

															on writ of certiorari before judgment to the
united states court of appeals for the second circuit

															[June 27, 2019]

															Chief Justice Roberts delivered the opinion of
the Court.

															The Secretary of Commerce decided to reinstate a
question about citizenship on the 2020 census questionnaire. A
group of plaintiffs challenged that decision on constitutional and
statutory grounds. We now decide whether the Secretary violated the
Enumeration Clause of the Constitution, the Census Act, or
otherwise abused his discretion.

															I

															A

															In order to apportion Members of the House of
Representatives among the States, the Constitution requires an
“Enumeration” of the population every 10 years, to be made “in such
Manner” as Congress “shall by Law direct.” Art. I, §2,
cl. 3; Amdt. 14, §2. In the Census Act, Congress delegated to
the Secretary of Commerce the task of conducting the decennial
census “in such form and content as he may determine.” 13
U. S. C. §141(a). The Secretary is aided in that task by
the Census Bureau, a statistical agency housed within the
Department of Commerce. See §§2, 21.

															The population count derived from the census is
used not only to apportion representatives but also to allocate
federal funds to the States and to draw electoral districts. Wisconsin v. City of New York , 517 U.S.
1 , 5–6 (1996). The census additionally serves as a means of
collecting demographic information, which “is used for such varied
purposes as computing federal grant-in-aid benefits, drafting of
legislation, urban and regional planning, business planning, and
academic and social studies.” Baldrige v. Shapiro , 455 U.S.
345 , 353–354, n. 9 (1982). Over the years, the census has
asked questions about (for example) race, sex, age, health,
education, occupation, housing, and military service. It has also
asked about radio ownership, age at first marriage, and native
tongue. The Census Act obliges everyone to answer census questions
truthfully and requires the Secretary to keep individual answers
confidential, including from other Government agencies. §§221,
8(b), 9(a).

															There have been 23 decennial censuses from the
first census in 1790 to the most recent in 2010. Every census
between 1820 and 2000 (with the exception of 1840) asked at least
some of the population about their citizenship or place of birth.
Between 1820 and 1950, the question was asked of all households.
Between 1960 and 2000, it was asked of about one-fourth to
one-sixth of the population. That change was part of a larger
effort to simplify the census by asking most people a few basic
demographic questions (such as sex, age, race, and marital status)
on a short-form questionnaire, while asking a sample of the
population more detailed demographic questions on a long-form
questionnaire. In explaining the decision to move the citizenship
question to the long-form questionnaire, the Census Bureau opined
that “general census information on citizenship had become of less
importance compared with other possible questions to be included in
the census, particularly in view of the recent statutory
requirement for annual alien registration which could provide the
Immigration and Naturalization Service, the principal user of such
data, with the information it needed.” Dept. of Commerce, Bureau of
Census, 1960 Censuses of Population and Housing 194
(1966).[ 1 ]

															In 2010, the year of the latest census, the
format changed again. All households received the same
questionnaire, which asked about sex, age, race, Hispanic origin,
and living arrangements. The more detailed demographic questions
previously asked on the long-form questionnaire, including the
question about citizenship, were instead asked in the American
Community Survey (or ACS), which is sent each year to a rotating
sample of about 2.6% of households.

															The Census Bureau and former Bureau officials
have resisted occasional proposals to resume asking a citizenship
question of everyone, on the ground that doing so would discourage
noncitizens from responding to the census and lead to a less
accurate count of the total population. See, e.g. , Federation of Am. Immigration Reform v. Klutznick , 486 F. Supp. 564 , 568 (DC 1980) (“[A]ccording to the Bureau[,]
any effort to ascertain citizenship will inevitably jeopardize the
overall accuracy of the population count”); Brief for Former
Directors of the U. S. Census Bureau as Amici Curiae in Evenwel v. Abbott , O. T. 2014, No. 14–940, p. 25
(inquiring about citizenship would “invariably lead to a lower
response rate”).

															B

															In March 2018, Secretary of Commerce Wilbur
Ross announced in a memo that he had decided to reinstate a
question about citizenship on the 2020 decennial census
questionnaire. The Secretary stated that he was acting at the
request of the Department of Justice (DOJ), which sought improved
data about citizen voting-age population for purposes of enforcing
the Voting Rights Act (or VRA)—specifically the Act’s ban on
diluting the influence of minority voters by depriving them of
single-member districts in which they can elect their preferred
candidates. App. to Pet. for Cert. 548a. DOJ explained that federal
courts determine whether a minority group could constitute a
majority in a particular district by looking to the citizen
voting-age population of the group. According to DOJ, the existing
citizenship data from the American Community Survey was not ideal:
It was not reported at the level of the census block, the basic
component of legislative districting plans; it had substantial
margins of error; and it did not align in time with the
census-based population counts used to draw legislative districts.
DOJ therefore formally requested reinstatement of the citizenship
question on the census questionnaire. Id. , at 565a–569a.

															The Secretary’s memo explained that the Census
Bureau initially analyzed, and the Secretary considered, three
possible courses of action. The first was to continue to collect
citizenship information in the American Community Survey and
attempt to develop a data model that would more accurately estimate
citizenship at the census block level. The Secretary rejected that
option because the Bureau “did not assert and could not confirm”
that such ACS-based data modeling was possible “with a sufficient
degree of accuracy.” Id. , at 551a.

															The second option was to reinstate a citizenship
question on the decennial census. The Bureau predicted that doing
so would discourage some noncitizens from responding to the census.
That would necessitate increased “non-response follow up”
operations—procedures the Bureau uses to attempt to count people
who have not responded to the census—and potentially lead to a less
accurate count of the total population.

															Option three was to use administrative records
from other agencies, such as the Social Security Administration and
Citizenship and Immigration Services, to provide DOJ with
citizenship data. The Census Bureau recommended this option, and
the Secretary found it a “potentially appealing solution” because
the Bureau has long used administrative records to supplement and
improve census data. Id. , at 554a. But the Secretary
concluded that administrative records alone were inadequate because
they were missing for more than 10% of the population.

															The Secretary ultimately asked the Census Bureau
to develop a fourth option that would combine options two and
three: reinstate a citizenship question on the census
questionnaire, and also use the time remaining until the 2020
census to “further enhance” the Bureau’s “administrative record
data sets, protocols, and statistical models.” Id. , at 555a.
The memo explained that, in the Secretary’s judgment, the fourth
option would provide DOJ with the “most complete and accurate”
citizen voting-age population data in response to its request. Id. , at 556a.

															The Secretary “carefully considered” the
possibility that reinstating a citizenship question would depress
the response rate. Ibid . But after evaluating the Bureau’s
“limited empirical evidence” on the question— evidence drawn from
estimated non-response rates to previous American Community Surveys
and census questionnaires—the Secretary concluded that it was not
possible to “determine definitively” whether inquiring about
citizenship in the census would materially affect response rates. Id. , at 557a, 562a. He also noted the long history of the
citizenship question on the census, as well as the facts that the
United Nations recommends collecting census-based citizenship
information, and other major democracies such as Australia, Canada,
France, Indonesia, Ireland, Germany, Mexico, Spain, and the United
Kingdom inquire about citizenship in their censuses. Altogether,
the Secretary determined that “the need for accurate citizenship
data and the limited burden that the reinstatement of the
citizenship question would impose outweigh fears about a
potentially lower response rate.” Id. , at 557a.

															C

															Shortly after the Secretary announced his
decision, two groups of plaintiffs filed suit in Federal District
Court in New York, challenging the decision on several grounds. The
first group of plaintiffs included 18 States, the District of
Columbia, various counties and cities, and the United States
Conference of Mayors. They alleged that the Secretary’s decision
violated the Enumeration Clause of the Constitution and the
requirements of the Administrative Procedure Act. The second group
of plaintiffs consisted of several non-governmental organizations
that work with immigrant and minority communities. They added an
equal protection claim. The District Court consolidated the two
cases. Both groups of plaintiffs are respondents here.

															The Government moved to dismiss the lawsuits,
arguing that the Secretary’s decision was unreviewable and that
respondents had failed to state cognizable claims under the
Enumeration Clause and the Equal Protection Clause. The District
Court dismissed the Enumeration Clause claim but allowed the other
claims to proceed. 315 F. Supp. 3d 766 (SDNY 2018).

															In June 2018, the Government submitted to the
District Court the Commerce Department’s “administrative record”:
the materials that Secretary Ross considered in making his
decision. That record included DOJ’s December 2017 letter
requesting reinstatement of the citizenship question, as well as
several memos from the Census Bureau analyzing the predicted
effects of reinstating the question. Shortly thereafter, at DOJ’s
urging, the Government supplemented the record with a new memo from
the Secretary, “intended to provide further background and context
regarding” his March 2018 memo. App. to Pet. for Cert. 546a. The
supplemental memo stated that the Secretary had begun considering
whether to add the citizenship question in early 2017, and had
inquired whether DOJ “would support, and if so would request,
inclusion of a citizenship question as consistent with and useful
for enforcement of the Voting Rights Act.” Ibid. According
to the Secretary, DOJ “formally” requested reinstatement of the
citizenship question after that inquiry. Ibid. Respondents argued that the supplemental memo
indicated that the Government had submitted an incomplete record of
the materials considered by the Secretary. They asked the District
Court to compel the Government to complete the administrative
record. The court granted that request, and the parties jointly
stipulated to the inclusion of more than 12,000 pages of additional
materials in the administrative record. Among those materials were
emails and other records confirming that the Secretary and his
staff began exploring the possibility of reinstating a citizenship
question shortly after he was confirmed in early 2017, attempted to
elicit requests for citizenship data from other agencies, and
eventually persuaded DOJ to request reinstatement of the question
for VRA enforcement purposes.

															In addition, respondents asked the court to
authorize discovery outside the administrative record. They claimed
that such an unusual step was warranted because they had made a
strong preliminary showing that the Secretary had acted in bad
faith. See Citizens to Preserve Overton Park , Inc. v. Volpe , 401 U.S.
402 , 420 (1971). The court also granted that request,
authorizing expert discovery and depositions of certain DOJ and
Commerce Department officials.

															In August and September 2018, the District Court
issued orders compelling depositions of Secretary Ross and of the
Acting Assistant Attorney General for DOJ’s Civil Rights Division.
We granted the Government’s request to stay the Secretary’s
deposition pending further review, but we declined to stay the
Acting AAG’s deposition or the other extra-record discovery that
the District Court had authorized.

															The District Court held a bench trial and issued
findings of fact and conclusions of law on respondents’ statutory
and equal protection claims. After determining that respondents had
standing to sue, the District Court ruled that the Secretary’s
action was arbitrary and capricious, based on a pretextual
rationale, and violated certain provisions of the Census Act. On
the equal protection claim, however, the District Court concluded
that respondents had not met their burden of showing that the
Secretary was motivated by discriminatory animus. The court granted
judgment to respondents on their statutory claims, vacated the
Secretary’s decision, and enjoined him from reinstating the
citizenship question until he cured the legal errors the court had
identified. 351 F. Supp. 3d 502 (SDNY 2019).

															The Government appealed to the Second Circuit,
but also filed a petition for writ of certiorari before judgment,
asking this Court to review the District Court’s decision directly
because the case involved an issue of imperative public importance,
and the census questionnaire needed to be finalized for printing by
the end of June 2019. We granted the petition. 586 U. S. ___
(2019). At the Government’s request, we later ordered the parties
to address whether the Enumeration Clause provided an alternative
basis to affirm. 586 U. S. ___ (2019).

															II

															We begin with jurisdiction. Article III of the
Constitution limits federal courts to deciding “Cases” and
“Controversies.” For a legal dispute to qualify as a genuine case
or controversy, at least one plaintiff must have standing to sue.
The doctrine of standing “limits the category of litigants
empowered to maintain a lawsuit in federal court to seek redress
for a legal wrong” and “confines the federal courts to a properly
judicial role.” Spokeo , Inc. v. Robins , 578
U. S. ___, ___ (2016) (slip op., at 6). To have standing, a
plaintiff must “present an injury that is concrete, particularized,
and actual or imminent; fairly traceable to the defendant’s
challenged behavior; and likely to be redressed by a favorable
ruling.” Davis v. Federal Election Comm’n , 554 U.S.
724 , 733 (2008).

															Respondents assert a number of
injuries—diminishment of political representation, loss of federal
funds, degradation of census data, and diversion of resources—all
of which turn on their expectation that reinstating a citizenship
question will depress the census response rate and lead to an
inaccurate population count. Several States with a disproportionate
share of noncitizens, for example, anticipate losing a seat in
Congress or qualifying for less federal funding if their
populations are undercounted. These are primarily future injuries,
which “may suffice if the threatened injury is certainly impending,
or there is a substantial risk that the harm will occur.” Susan
B. Anthony List v. Driehaus , 573 U.S. 149, 158 (2014)
(internal quotation marks omitted).

															The District Court concluded that the evidence
at trial established a sufficient likelihood that the reinstatement
of a citizenship question would result in noncitizen households
responding to the census at lower rates than other groups, which in
turn would cause them to be undercounted and lead to many of
respondents’ asserted injuries. For purposes of standing, these
findings of fact were not so suspect as to be clearly
erroneous.

															We therefore agree that at least some
respondents have Article III standing. Several state respondents
here have shown that if noncitizen households are undercounted by
as little as 2%—lower than the District Court’s 5.8%
prediction—they will lose out on federal funds that are distributed
on the basis of state population. That is a sufficiently concrete
and imminent injury to satisfy Article III, and there is no dispute
that a ruling in favor of respondents would redress that harm.

															The Government contends, however, that any harm
to respondents is not fairly traceable to the Secretary’s decision,
because such harm depends on the independent action of third
parties choosing to violate their legal duty to respond to the
census. The chain of causation is made even more tenuous, the
Government argues, by the fact that such intervening, unlawful
third-party action would be motivated by unfounded fears that the
Federal Government will itself break the law by using noncitizens’
answers against them for law enforcement purposes. The Government
invokes our steady refusal to “endorse standing theories that rest
on speculation about the decisions of independent actors,” Clapper v. Amnesty Int’l USA , 568
U.S. 398 , 414 (2013), particularly speculation about future
unlawful conduct, Los Angeles v. Lyons , 461 U.S.
95 , 105 (1983).

															But we are satisfied that, in these
circumstances, respondents have met their burden of showing that
third parties will likely react in predictable ways to the
citizenship question, even if they do so unlawfully and despite the
requirement that the Government keep individual answers
confidential. The evidence at trial established that noncitizen
households have historically responded to the census at lower rates
than other groups, and the District Court did not clearly err in
crediting the Census Bureau’s theory that the discrepancy is likely
attributable at least in part to noncitizens’ reluctance to answer
a citizenship question. Respondents’ theory of standing thus does
not rest on mere speculation about the decisions of third parties;
it relies instead on the predictable effect of Government action on
the decisions of third parties. Cf. Bennett v. Spear , 520 U.S.
154 , 169–170 (1997); Davis , 554 U. S., at 734–735.
Because Article III “requires no more than de facto causality,” Block v. Meese , 793 F.2d 1303, 1309 (CADC
1986) (Scalia, J.), traceability is satisfied here. We may
therefore consider the merits of respondents’ claims, at least as
far as the Constitution is concerned.

															III

															The Enumeration Clause of the Constitution
does not provide a basis to set aside the Secretary’s decision. The
text of that clause “vests Congress with virtually unlimited
discretion in conducting the decennial ‘actual Enumeration,’ ”
and Congress “has delegated its broad authority over the census to
the Secretary.” Wisconsin , 517 U. S., at 19. Given that
expansive grant of authority, we have rejected challenges to the
conduct of the census where the Secretary’s decisions bore a
“reasonable relationship to the accomplishment of an actual
enumeration.” Id. , at 20.

															Respondents ask us to evaluate the Secretary’s
decision to reinstate a citizenship question under that “reasonable
relationship” standard, but we agree with the District Court that a
different analysis is needed here. Our cases applying that standard
concerned decisions about the population count itself—such as a
postcensus decision not to use a particular method to adjust an
undercount, id. , at 4, and a decision to allocate overseas
military personnel to their home States, Franklin v. Massachusetts , 505 U.S.
788 , 790–791 (1992). We have never applied the standard to
decisions about what kinds of demographic information to collect in
the course of taking the census. Indeed, as the District Court
recognized, applying the “reasonable relationship” standard to every census-related decision “would lead to the conclusion
that it is unconstitutional to ask any demographic question
on the census” because “asking such questions bears no relationship
whatsoever to the goal of an accurate headcount.” 315 F. Supp.
3d, at 804–805. Yet demographic questions have been asked in every census since 1790, and questions about citizenship in
particular have been asked for nearly as long. Like the District
Court, we decline respondents’ invitation to measure the
constitutionality of the citizenship question by a stand- ard that
would seem to render every census since 1790 unconstitutional.

															We look instead to Congress’s broad authority
over the census, as informed by long and consistent historical
practice. All three branches of Government have understood the
Constitution to allow Congress, and by extension the Secretary, to
use the census for more than simply counting the population. Since
1790, Congress has sought, or permitted the Secretary to seek,
information about matters as varied as age, sex, marital status,
health, trade, profession, literacy, and value of real estate
owned. See id. , at 801. Since 1820, it has sought, or
permitted the Secretary to seek, information about citizenship in
particular. Federal courts have approved the practice of collecting
demographic data in the census. See, e.g. , United
States v. Moriarity , 106 F. 886, 891 (CC SDNY 1901)
(duty to take a census of population “does not prohibit the
gathering of other statistics, if ‘necessary and proper,’ for the
intelligent exercise of other powers enumerated in the
constitution”). While we have never faced the question directly, we
have assumed that Congress has the power to use the census for
information-gathering purposes, see Legal Tender Cases , 12
Wall. 457, 536 (1871), and we have recognized the role of the
census as a “linchpin of the federal statistical system by
collecting data on the characteristics of individuals, households,
and housing units throughout the country,” Department of
Commerce v. United States House of Representatives , 525 U.S.
316 , 341 (1999) (internal quotation marks omitted).

															That history matters. Here, as in other areas,
our interpretation of the Constitution is guided by a Government
practice that “has been open, widespread, and unchallenged since
the early days of the Republic.” NLRB v. Noel
Canning , 573 U.S. 513, 572 (2014) (Scalia, J., concurring in
judgment); see also Wisconsin , 517 U. S., at 21 (noting
“importance of historical practice” in census context). In light of
the early understanding of and long practice under the Enumeration
Clause, we conclude that it permits Congress, and by extension the
Secretary, to inquire about citizenship on the census
questionnaire. We need not, and do not, decide the
constitutionality of any other question that Congress or the
Secretary might decide to include in the census.

															IV

															The District Court set aside the Secretary’s
decision to reinstate a citizenship question on the grounds that
the Secretary acted arbitrarily and violated certain provisions of
the Census Act. The Government contests those rulings, but also
argues that the Secretary’s decision was not judicially reviewable
under the Administrative Procedure Act in the first place. We begin
with that contention.

															A

															The Administrative Procedure Act embodies a
“basic presumption of judicial review,” Abbott Laboratories v. Gardner , 387 U.S.
136 , 140 (1967), and instructs reviewing courts to set aside
agency action that is “arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law,” 5
U. S. C. §706(2)(A). Review is not available, however,
“to the extent that” a relevant statute precludes it, §701(a)(1),
or the agency action is “committed to agency discretion by law,”
§701(a)(2). The Government argues that the Census Act commits to
the Secretary’s unreviewable discretion decisions about what
questions to include on the decennial census questionnaire.

															We disagree. To be sure, the Act confers broad
authority on the Secretary. Section 141(a) instructs him to take “a
decennial census of population” in “such form and content as he may
determine, including the use of sampling procedures and special
surveys.” 13 U. S. C. §141. The Act defines “census of
population” to mean “a census of population, housing, and matters
relating to population and housing,” §141(g), and it authorizes the
Secretary, in “connection with any such census,” to “obtain such
other census information as necessary,” §141(a). It also states
that the “Secretary shall prepare questionnaires, and shall
determine the inquiries, and the number, form, and subdivisions
thereof, for the statistics, surveys, and censuses provided for in
this title.” §5. And it authorizes him to acquire materials, such
as administrative records, from other federal, state, and local
agencies in aid of conducting the census. §6. Those provisions
leave much to the Secretary’s discretion. See Wisconsin , 517
U. S., at 19 (“Through the Census Act, Congress has delegated
its broad authority over the census to the Secretary.”).

															But they do not leave his discretion unbounded.
In order to give effect to the command that courts set aside agency
action that is an abuse of discretion, and to honor the presumption
of judicial review, we have read the §701(a)(2) exception for
action committed to agency discretion “quite narrowly, restricting
it to ‘those rare circumstances where the relevant statute is drawn
so that a court would have no meaningful standard against which to
judge the agency’s exercise of discretion.’ ” Weyerhaeuser
Co. v. United States Fish and Wildlife Serv. , 586
U. S. ___, ___ (2018) (slip op., at 12) (quoting Lincoln v. Vigil , 508 U.S.
182 , 191 (1993)). And we have generally limited the exception
to “certain categories of administrative decisions that courts
traditionally have regarded as ‘committed to agency
discretion,’ ” id. , at 191, such as a decision not to
institute enforcement proceedings, Heckler v. Chaney , 470 U.S.
821 , 831–832 (1985), or a decision by an intelligence agency to
terminate an employee in the interest of national security, Webster v. Doe , 486 U.S.
592 , 600–601 (1988).

															The taking of the census is not one of those
areas traditionally committed to agency discretion. We and other
courts have entertained both constitutional and statutory
challenges to census-related decisionmaking. See, e.g. , Department of Commerce , 525 U.S.
316 ; Wisconsin , 517 U.S.
1 ; Carey v. Klutznick , 637 F.2d 834 (CA2
1980).

															Nor is the statute here drawn so that it
furnishes no meaningful standard by which to judge the Secretary’s
action. In contrast to the National Security Act in Webster ,
which gave the Director of Central Intelligence discretion to
terminate employees whenever he “deem[ed]” it “advisable,” 486
U. S., at 594, the Census Act constrains the Secretary’s
authority to determine the form and content of the census in a
number of ways. Section 195, for example, governs the extent to
which he can use statistical sampling. Section 6(c), which will be
considered in more detail below, circumscribes his power in certain
circumstances to collect information through direct inquiries when
administrative records are available. More generally, by mandating
a population count that will be used to apportion representatives,
see §141(b), 2 U. S. C. §2a, the Act imposes “a duty to
conduct a census that is accurate and that fairly accounts for the
crucial representational rights that depend on the census and the
apportionment.” Franklin , 505 U. S., at 819–820
(Stevens, J., concurring in part and concurring in judgment).

															The Secretary’s decision to reinstate a
citizenship question is amenable to review for compliance with
those and other provisions of the Census Act, according to the
general requirements of reasoned agency decisionmaking. Because
this is not a case in which there is “no law to apply,” Overton
Park , 401 U. S., at 410, the Secretary’s decision is
subject to judicial review.

															B

															At the heart of this suit is respondents’
claim that the Secretary abused his discretion in deciding to
reinstate a citizenship question. We review the Secretary’s
exercise of discretion under the deferential “arbitrary and
capricious” standard. See 5 U. S. C. §706(2)(A). Our
scope of review is “narrow”: we determine only whether the
Secretary examined “the relevant data” and articulated “a
satisfactory explanation” for his decision, “including a rational
connection between the facts found and the choice made.” Motor
Vehicle Mfrs. Assn. of United States , Inc. v. State
Farm Mut. Automobile Ins. Co. , 463 U.S.
29 , 43 (1983) (internal quotation marks omitted). We may not
substitute our judgment for that of the Secretary, ibid. ,
but instead must confine ourselves to ensuring that he remained
“within the bounds of reasoned decisionmaking,” Baltimore Gas
& Elec. Co. v. Natural Resources Defense Council , Inc. , 462 U.S.
87 , 105 (1983).

															The District Court set aside the Secretary’s
decision for two independent reasons: His course of action was not
supported by the evidence before him, and his stated rationale was
pretextual. We focus on the first point here and take up the
question of pretext later.

															The Secretary examined the Bureau’s analysis of
various ways to collect improved citizenship data and explained why
he thought the best course was to both reinstate a citizenship
question and use citizenship data from administrative records to
fill in the gaps. He considered but rejected the Bureau’s
recommendation to use administrative records alone. As he
explained, records are lacking for about 10% of the population, so
the Bureau would still need to estimate citizenship for millions of
voting-age people. Asking a citizenship question of everyone, the
Secretary reasoned, would eliminate the need to estimate
citizenship for many of those people. And supplementing census
responses with administrative record data would help complete the
picture and allow the Bureau to better estimate citizenship for the
smaller set of cases where it was still necessary to do so.

															The evidence before the Secretary supported that
decision. As the Bureau acknowledged, each approach—using
administrative records alone, or asking about citizenship and using
records to fill in the gaps—entailed tradeoffs between accuracy and
completeness. Without a citizenship question, the Bureau would need
to estimate the citizenship of about 35 million people; with a
citizenship question, it would need to estimate the citizenship of
only 13.8 million. Under either approach, there would be some
errors in both the administrative records and the Bureau’s
estimates. With a citizenship question, there would also be some
erroneous self-responses (about 500,000) and some conflicts between
responses and administrative record data (about 9.5 million).

															The Bureau explained that the “relative quality”
of the citizenship data generated by each approach would depend on
the “relative importance of the errors” in each, but it was not
able to “quantify the relative magnitude of the errors across the
alternatives.” App. 148. The Bureau nonetheless recommended using
administrative records alone because it had “high confidence” that
it could develop an accurate model for estimating the citizenship
of the 35 million people for whom administrative records were not
available, and it thought the resulting citizenship data would be
of superior quality. Id. , at 146, 158–159. But when the time
came for the Secretary to make a decision, the model did not yet
exist, and even if it had, there was no way to gauge its relative
accuracy. As the Bureau put it, “we will most likely never possess
a fully adequate truth deck to benchmark” the model—which appears
to be bureaucratese for “maybe, maybe not.” Id. , at 146. The
Secretary opted instead for the approach that would yield a more
complete set of data at an acceptable rate of accuracy, and would
require estimating the citizenship of fewer people.

															The District Court overruled that choice,
agreeing with the Bureau’s assessment that its recommended approach
would yield higher quality citizenship data on the whole. But the
choice between reasonable policy alternatives in the face of
uncertainty was the Secretary’s to make. He considered the relevant
factors, weighed risks and benefits, and articulated a satisfactory
explanation for his decision. In overriding that reasonable
exercise of discretion, the court improperly substituted its
judgment for that of the agency.

															The Secretary then weighed the benefit of
collecting more complete and accurate citizenship data against the
risk that inquiring about citizenship would depress census response
rates, particularly among noncitizen households. In the Secretary’s
view, that risk was difficult to assess. The Bureau predicted a
5.1% decline in response rates among noncitizen households if the
citizenship question were reinstated.[ 2 ] It relied for that prediction primarily on studies
showing that, while noncitizens had responded at lower rates than
citizens to the 2000 short-form and 2010 censuses, which did not
ask about citizenship, they responded at even lower rates than
citizens to the 2000 long-form census and the 2010 American
Community Survey, which did ask about citizenship. The Bureau
thought it was reasonable to infer that the citizenship question
accounted for the differential decline in noncitizen responses.
But, the Secretary explained, the Bureau was unable to rule out
other causes. For one thing, the evidence before the Secretary
suggested that noncitizen households tend to be more distrustful
of, and less likely to respond to, any government effort to
collect information. For another, both the 2000 long-form census
and 2010 ACS asked over 45 questions on a range of topics,
including employment, income, and housing characteristics.
Noncitizen households might disproportionately fail to respond to a
lengthy and intrusive Government questionnaire for a number of
reasons besides reluctance to answer a citizenship question—reasons
relating to education level, socioeconomic status, and less
exposure to Government outreach efforts. See App. to Pet. for Cert.
553a–554a, 557a–558a.

															The Secretary justifiably found the Bureau’s
analysis inconclusive. Weighing that uncertainty against the value
of obtaining more complete and accurate citizenship data, he
determined that reinstating a citizenship question was worth the
risk of a potentially lower response rate. That decision was
reasonable and reasonably explained, particularly in light of the
long history of the citizenship question on the census.

															Justice Breyer would conclude otherwise, but
only by subordinating the Secretary’s policymaking discretion to
the Bureau’s technocratic expertise. Justice Breyer’s analysis
treats the Bureau’s (pessimistic) prediction about response rates
and (optimistic) assumptions about its data modeling abilities as
touchstones of substantive reason- ableness rather than simply
evidence for the Secretary to consider. He suggests that the
Secretary should have deferred to the Bureau or at least offered
some special justification for drawing his own inferences and
adopting his own assumptions. But the Census Act authorizes the
Secretary, not the Bureau, to make policy choices within the range
of reasonable options. And the evidence before the Secretary hardly
led ineluctably to just one reasonable course of action. It called
for value-laden decisionmaking and the weighing of incommensurables
under conditions of uncertainty. The Secretary was required to
consider the evidence and give reasons for his chosen course of
action. He did so. It is not for us to ask whether his decision was
“the best one possible” or even whether it was “better than the
alternatives.” FERC v. Electric Power Supply Assn. ,
577 U. S. ___, ___ (2016) (slip op., at 30). By
second-guessing the Secretary’s weighing of risks and benefits and
penalizing him for departing from the Bureau’s inferences and
assumptions, Justice Breyer—like the District Court—substitutes his
judgment for that of the agency.

															C

															The District Court also ruled that the
Secretary violated two particular provisions of the Census Act,
§6(c) and §141(f).

															Section 6 has three subsections. Subsections (a)
and (b) authorize the Secretary to acquire administrative records
from other federal agencies and from state and local
governments.[ 3 ] Subsection (c)
states:

															“To the maximum extent possible and
consistent with the kind, timeliness, quality and scope of the
statistics required, the Secretary shall acquire and use
information available from any source referred to in subsection (a)
or (b) of this section instead of conducting direct inquiries.” 13
U. S. C. §6(c).

															The District Court held, and respondents argue,
that the Secretary failed to comply with §6(c) because he opted to
collect citizenship data using direct inquiries when it was
possible to provide DOJ with data from administrative records
alone.

															At the outset, §6(c) may not even apply here. It
governs the Secretary’s choices with respect to “statistics
required.” The parties have assumed that phrase refers to
census-related data that the Secretary wishes to acquire, but it
may instead refer to particular kinds of statistics that other
provisions of the Census Act actually do require the
Secretary to collect and publish. See, e.g. , §41 (“The
Secretary shall collect and publish statistics concerning [cotton
and cotton production].”); §61 (“The Secretary shall collect,
collate, and publish monthly statistics concerning [vegetable and
animal oils and the like].”); §91 (“The Secretary shall collect and
publish quarterly financial statistics of business operations,
organization, practices, management, and relation to other
businesses.”). If so, §6(c) would seem to have nothing to say about
the Secretary’s collection of census-related citizenship data,
which is not a “statistic” he is “required” to collect.

															Regardless, assuming the provision applies, the
Secretary complied with it, for essentially the same reasons that
his decision was not arbitrary and capricious. As he explained,
administrative records would not, in his judgment, provide the more
complete and accurate data that DOJ sought. He thus could not,
“consistent with” the kind and quality of the “statistics
required,” use administrative records instead of asking about
citizenship directly. Respondents’ arguments to the contrary rehash
their dis- agreement with the Secretary’s policy judgment about
which approach would yield the most complete and accurate
citizenship data. For the reasons already discussed, we may not
substitute our judgment for that of the Secretary here.

															We turn now to §141(f), which requires the
Secretary to report to Congress about his plans for the census.
Paragraph (1) instructs him to submit, at least three years before
the census date, a report containing his “determination of the
subjects proposed to be included, and the types of information to
be compiled,” in the census. Paragraph (2) then tells him to
submit, at least two years before the census date, a report
containing his “determination of the questions proposed to be
included” in the census. Paragraph (3) provides:

															“[A]fter submission of a report under
paragraph (1) or (2) of this subsection and before the appropriate
census date, if the Secretary finds new circumstances exist which
necessitate that the subjects, types of information, or questions
contained in reports so submitted be modified, [he shall submit]
areport containing the Secretary’s determination of the subjects,
types of information, or questions as proposed to be modified.”

															The Secretary timely submitted his paragraph (1)
report in March 2017. It did not mention citizenship. In December
2017, he received DOJ’s formal request. Three months later, in
March 2018, he timely submitted his para- graph (2) report. It did
propose asking a question about citizenship.

															The District Court held that the Secretary’s
failure to mention citizenship in his March 2017 report violated
§141(f)(1) and provided an independent basis to set aside his
action. Assuming without deciding that the Secretary’s compliance
with the reporting requirement is for courts—rather than
Congress—to police, we disagree. The Secretary’s March 2018 report
satisfied the requirements of paragraph (3): By informing Congress
that he proposed to include a citizenship question, the Secretary
necessarily also informed Congress that he proposed to modify the
original list of subjects that he submitted in the March 2017
report. Nothing in §141(f) suggests that the same report cannot
simultaneously fulfill the requirements of paragraphs (2) and (3).
And to the extent paragraph (3) requires the Secretary to explain
his finding of new circumstances, he did so in his March 2018 memo,
which described DOJ’s intervening request.

															In any event, even if we agreed with the
District Court that the Secretary technically violated §141(f) by
submitting a paragraph (2) report that doubled as a paragraph (3)
report, the error would surely be harmless in these circumstances,
where the Secretary nonetheless fully informed Congress of, and
explained, his decision. See 5 U. S. C. §706 (in
reviewing agency action, “due account shall be taken of the rule of
prejudicial error”).

															V

															We now consider the District Court’s
determination that the Secretary’s decision must be set aside
because it rested on a pretextual basis, which the Government
conceded below would warrant a remand to the agency.

															We start with settled propositions. First, in
order to permit meaningful judicial review, an agency must
“disclose the basis” of its action. Burlington Truck Lines , Inc. v. United States , 371 U.S.
156 , 167–169 (1962) (internal quotation marks omitted); see
also SEC v. Chenery Corp. , 318 U.S.
80 , 94 (1943) (“[T]he orderly functioning of the process of
review requires that the grounds upon which the administrative
agency acted be clearly disclosed and adequately sustained.”).

															Second, in reviewing agency action, a court is
ordinarily limited to evaluating the agency’s contemporaneous
explanation in light of the existing administrative record. Vermont Yankee Nuclear Power Corp. v. Natural Resources
Defense Council , Inc. , 435 U.S.
519 , 549 (1978); Camp v. Pitts , 411 U.S.
138 , 142–143 (1973) ( per curiam ). That principle
reflects the recognition that further judicial inquiry into
“executive motivation” represents “a substantial intrusion” into
the workings of another branch of Government and should normally be
avoided. Arlington Heights v. Metropolitan Housing
Development Corp. , 429 U.S.
252 , 268, n. 18 (1977); see Overton Park , 401
U. S., at 420.

															Third, a court may not reject an agency’s stated
reasons for acting simply because the agency might also have had
other unstated reasons. See Jagers v. Federal Crop Ins.
Corp. , 758 F.3d 1179, 1185–1186 (CA10 2014) (rejecting argument
that “the agency’s subjective desire to reach a particular result
must necessarily invalidate the result, regardless of the objective
evidence supporting the agency’s conclusion”). Relatedly, a court
may not set aside an agency’s policymaking decision solely because
it might have been influenced by political considerations or
prompted by an Administration’s priorities. Agency policymaking is
not a “rarified technocratic process, unaffected by political
considerations or the presence of Presidential power.” Sierra
Club v. Costle , 657 F.2d 298, 408 (CADC 1981). Such
decisions are routinely informed by unstated considerations of
politics, the legislative process, public relations, interest group
relations, foreign relations, and national security concerns (among
others).

															Finally, we have recognized a narrow exception
to the general rule against inquiring into “the mental processes of
administrative decisionmakers.” Overton Park , 401
U. S., at 420. On a “strong showing of bad faith or improper
behavior,” such an inquiry may be warranted and may justify
extra-record discovery. Ibid. The District Court invoked that exception in
ordering extra-record discovery here. Although that order was
premature, we think it was ultimately justified in light of the
expanded administrative record. Recall that shortly after this
litigation began, the Secretary, prodded by DOJ, filed a
supplemental memo that added new, pertinent information to the
administrative record. The memo disclosed that the Secretary had
been considering the citizenship question for some time and that
Commerce had inquired whether DOJ would formally request
reinstatement of the question. That supplemental memo prompted
respondents to move for both completion of the administrative
record and extra-record discovery. The District Court granted both
requests at the same hearing, agreeing with respondents that the
Government had submitted an incomplete administrative record and
that the existing evidence supported a prima facie showing that the
VRA rationale was pretextual.

															The Government did not challenge the court’s
conclusion that the administrative record was incomplete, and the
parties stipulated to the inclusion of more than 12,000 pages of
internal deliberative materials as part of the administrative
record, materials that the court later held were sufficient on
their own to demonstrate pretext. The Government did, however,
challenge the District Court’s order authorizing extra-record
discovery, as well as the court’s later orders compelling
depositions of the Secretary and of the Acting Assistant Attorney
General for DOJ’s Civil Rights Division.

															We agree with the Government that the District
Court should not have ordered extra-record discovery when it did.
At that time, the most that was warranted was the order to complete
the administrative record. But the new material that the parties
stipulated should have been part of the administrative record—which
showed, among other things, that the VRA played an insignificant
role in the decisionmaking process—largely justified such
extra-record discovery as occurred (which did not include the
deposition of the Secretary himself). We accordingly review the
District Court’s ruling on pretext in light of all the evidence in
the record before the court, including the extra-record
discovery.

															That evidence showed that the Secretary was
determined to reinstate a citizenship question from the time he
entered office; instructed his staff to make it happen; waited
while Commerce officials explored whether another agency would
request census-based citizenship data; subsequently contacted the
Attorney General himself to ask if DOJ would make the request; and
adopted the Voting Rights Act rationale late in the process. In the
District Court’s view, this evidence established that the Secretary
had made up his mind to reinstate a citizenship question “well
before” receiving DOJ’s request, and did so for reasons unknown but
unrelated to the VRA. 351 F. Supp. 3d, at 660.

															The Government, on the other hand, contends that
there was nothing objectionable or even surprising in this. And we
agree—to a point. It is hardly improper for an agency head to come
into office with policy preferences and ideas, discuss them with
affected parties, sound out other agencies for support, and work
with staff attorneys to substantiate the legal basis for a
preferred policy. The record here reflects the sometimes involved
nature of Executive Branch decisionmaking, but no particular step
in the process stands out as inappropriate or defective.

															And yet, viewing the evidence as a whole, we
share the District Court’s conviction that the decision to
reinstate a citizenship question cannot be adequately explained in
terms of DOJ’s request for improved citizenship data to better
enforce the VRA. Several points, considered together, reveal a
significant mismatch between the decision the Secretary made and
the rationale he provided.

															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.” Id., at 551. 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. The December 2017 letter from
DOJ drew heavily on contributions from Commerce staff and advisors.
Their influence may explain why the letter went beyond a simple
entreaty for better citizenship data—what one might expect of a
typical request from another agency—to a specific request that
Commerce collect the data by means of reinstating a citizenship
question on the census. Finally, after sending the letter, DOJ
declined the Census Bureau’s offer to discuss alternative ways to
meet DOJ’s stated need for improved citizenship data, further
suggesting a lack of interest on DOJ’s part.

															Altogether, the evidence tells a story that does
not match the explanation the Secretary gave for his decision. In
the Secretary’s telling, Commerce was simply acting on a routine
data request from another agency. Yet the materials before us
indicate that Commerce went to great lengths to elicit the request
from DOJ (or any other willing agency). And unlike a typical case
in which an agency may have both stated and unstated reasons for a
decision, here the VRA enforcement rationale—the sole stated
reason—seems to have been contrived.

															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. It is rare to review a record as extensive as the one
before us when evaluating informal agency action—and it should be.
But having done so for the sufficient reasons we have explained, we
cannot ignore the disconnect between the decision made and the
explanation given. Our review is deferential, but we are “not
required to exhibit a naiveté from which ordinary citizens are
free.” United States v. Stanchich , 550 F.2d 1294,
1300 (CA2 1977) (Friendly, J.). The reasoned explanation
requirement of administrative law, after all, is meant to ensure
that agencies offer genuine justifications for important decisions,
reasons that can be scrutinized by courts and the interested
public. Accepting contrived reasons would defeat the purpose of the
enterprise. If judicial review is to be more than an empty ritual,
it must demand something better than the explanation offered for
the action taken in this case.

															In these unusual circumstances, the District
Court was warranted in remanding to the agency, and we affirm that
disposition. See Florida Power & Light Co. v. Lorion , 470 U.S.
729 , 744 (1985). We do not hold that the agency decision here
was substantively invalid. But agencies must pursue their goals
reasonably. Reasoned decisionmaking under the Administrative
Procedure Act calls for an explanation for agency action. What was
provided here was more of a distraction.

															*  *  *

															The judgment of the United States District
Court for the Southern District of New York is affirmed in part and
reversed in part, and the case is remanded for further proceedings
consistent with this opinion.

															It is so ordered. Notes 1 The annual alien
registration requirement was repealed in 1981. See §11, 95Stat.
1617 (1981). 2 Several months after the
Secretary made his decision, the Bureau updated its prediction to
5.8%, the figure the District Court later relied on in its standing
analysis. See 351 F. Supp. 3d 502, 579 (SDNY
2019). 3 The full text of
subsections (a) and (b) provides: “(a) The Secretary, whenever he
considers it advisable, may call upon any other department, agency,
or establishment of the FederalGovernment, or of the government of
the District of Columbia, for information pertinent to the work
provided for in this title. “(b) The Secretary may acquire, by
purchase or otherwise, from States, counties, cities, or other
units of government, or their instrumentalities, or from private
persons and agencies, such copies of records, reports, and other
material as may be required for the efficient and economical
conduct of the censuses and surveys provided for in this title.” 13
U. S. C. §6. SUPREME COURT OF THE UNITED STATES

															_________________

															No. 18–966

															_________________

															DEPARTMENT OF COMMERCE, et al., PETITIONERS v. NEW YORK, et al.

															on writ of certiorari before judgment to the
united states court of appeals for the second circuit

															[June 27, 2019]

															Justice Thomas, with whom Justice Gorsuch and
Justice Kavanaugh join, concurring in part and dissenting in
part.

															In March 2018, the Secretary of Commerce
exercised his broad discretion over the administration of the
decennial census to resume a nearly unbroken practice of asking a
question relating to citizenship. Our only role in this case is to
decide whether the Secretary complied with the law and gave a
reasoned explanation for his decision. The Court correctly answers
these questions in the affirmative. Ante , at 11–23. That
ought to end our inquiry.

															The Court, however, goes further. For the first
time ever, the Court invalidates an agency action solely because it
questions the sincerity of the agency’s otherwise adequate
rationale. Echoing the din of suspicion and distrust that seems to
typify modern discourse, the Court declares the Secretary’s
memorandum “pretextual” because, “viewing the evidence as a whole,”
his explanation that including a citizenship question on the census
would help enforce the Voting Rights Act (VRA) “seems to have been
contrived.” Ante , at 23, 26, 28. The Court does not hold
that the Secretary merely had additional , unstated reasons
for reinstating the citizenship question. Rather, it holds that the
Secretary’s stated rationale did not factor at all into his
decision.

															The Court’s holding reflects an unprecedented
departure from our deferential review of discretionary agency
decisions. And, if taken seriously as a rule of decision, this
holding would transform administrative law. It is not difficult for
political opponents of executive actions to generate controversy
with accusations of pretext, deceit, and illicit motives.
Significant policy decisions are regularly criticized as products
of partisan influence, interest-group pressure, corruption, and
animus. Crediting these accusations on evidence as thin as the
evidence here could lead judicial review of administrative
proceedings to devolve into an endless morass of discovery and
policy disputes not contemplated by the Administrative Procedure
Act (APA).

															Unable to identify any legal problem with the
Secretary’s reasoning, the Court imputes one by concluding that he
must not be telling the truth. The Court therefore up- holds the
decision of the District Court—which, in turn, was transparently
based on the application of an administration-specific standard.
App. to Pet. for Cert. 527a (crediting respondents’ allegations
that “the current Depart- ment of Justice has shown little
interest in enforcing the” VRA (emphasis added)).

															The law requires a more impartial approach. Even
assuming we are authorized to engage in the review undertaken by
the Court—which is far from clear—we have often stated that courts
reviewing agency action owe the Executive a “presumption of
regularity.” Citizens to Preserve Overton Park, Inc. v. Volpe , 401 U.S.
402 , 415 (1971). The Court pays only lipservice to this
principle. But, the evidence falls far short of supporting its
decision. The Court, I fear, will come to regret inventing the
principles it uses to achieve today’s result. I respectfully
dissent from Part V of the opinion of the Court.[ 1 ]

															I

															As the Court explains, federal law directs the
Secretary of Commerce to “take a decennial census.” 13
U. S. C. §141(a); see U. S. Const., Art. I, §2,
cl. 3; Amdt. XIV, §2; ante , at 1–2. The discretion
afforded the Secretary is extremely broad. Subject only to
constitutional limitations and a handful of inapposite statutory
requirements, the Secretary is expressly authorized to “determine
the inquiries” on the census questionnaire and to conduct the
census “in such form and content as he may determine.” §§5, 141(a);
see ante , at 14–16, 20–23.[ 2 ] Prior census questionnaires have included questions
ranging from sex, age, and race to commute, education, and radio
ownership. And between 1820 and 2010, every decennial census
questionnaire but one asked some segment of the population a
question related to citizenship. The 2010 census was the first
since 1840 that did not include any such question.

															In March 2018, the Secretary issued a memorandum
reinstating a citizenship question on the 2020 census. He explained
that the Department of Justice (DOJ) had formally requested
reinstatement of the question because the data obtained would help
enforce §2 of the VRA. He further explained that the question had
been well tested in light of its extensive previous use, that he
had consulted with the Census Bureau on the proposal, and that his
final decision incorporated feedback from the Bureau. He recognized
that staff at the Bureau believed that better data could be
obtained through modeling and reliance on existing records, but he
disagreed with that assessment, explaining that the data was
inconclusive and that he thought it preferable to ask the question
directly of the entire population. Respondents brought suit,
seeking judicial review of the Secretary’s decision under the APA,
5 U. S. C. §706.

															II

															As relevant here, the APA requires courts to
“hold unlawful and set aside” agency action that is “arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance
with law.” §706(2)(A). We have emphasized that “[r]eview under the
arbitrary and capricious standard is deferential.” National
Assn. of Home Builders v. Defenders of Wildlife , 551 U.S.
644 , 658 (2007); see Glickman v. Wileman Brothers
& Elliott, Inc. , 521 U.S.
457 , 466, n. 8 (1997). It requires the reviewing court to
determine whether the agency “ ‘examine[d] the relevant data
and articulate[d] a satisfactory explanation for its
action.’ ” FCC v. Fox Television Stations, Inc. , 556 U.S.
502 , 513 (2009). We have described this as a “ ‘narrow’
standard of review” under which the reviewing court cannot
“ ‘substitute its judgment for that of the agency,’ and should
‘uphold a decision of less than ideal clarity if the agency’s path
may reasonably be discerned.’ ” Id. , at 513–514
(citation omitted); accord, Motor Vehicle Mfrs. Assn. of United
States, Inc. v. State Farm Mut. Automobile Ins. Co. , 463 U.S.
29 , 43 (1983).[ 3 ]

															Part IV–B of the opinion of the Court correctly
applies this standard to conclude that the Secretary’s decision
survives ordinary arbitrary-and-capricious review. That holding
should end our inquiry.

															But the opinion continues. Acknowledging that
“no particular step” in the proceedings here “stands out as
inappropriate or defective,” even after reviewing “all the evidence
in the record . . . , including the extra-record
discovery,” ante , at 26, the Court nevertheless agrees with
the District Court that the Secretary’s rationale for reinstating
the citizenship question was “pretextual—that is, that the real
reason for his decision was something other than the sole reason he
put forward in his memorandum, namely enhancement of DOJ’s VRA
enforcement efforts.” 351 F. Supp. 3d 502, 660 (SDNY 2019);
see ante , at 28. According to the Court, something just
“seems” wrong. Ibid. This conclusion is extraordinary. The Court
engages in an unauthorized inquiry into evidence not properly
before us to reach an unsupported conclusion. Moreover, each step
of the inquiry offends the presumption of regularity we owe the
Executive. The judgment of the District Court should be
reversed.

															A

															Section 706(2) of the APA contemplates review
of the administrative “record” to determine whether an agency’s
“action, findings, and conclusions” satisfy six specified
standards. See §§706(2)(A)–(F). None instructs the Court to inquire
into pretext. Consistent with this statutory text, we have held
that a court is “ordinarily limited to evaluating the agency’s
contemporaneous explanation in light of the existing administrative
record.” Ante , at 23 (citing Vermont Yankee Nuclear Power
Corp. v. Natural Resources Defense Council, Inc. , 435 U.S.
519 , 549 (1978)); see SEC v. Chenery Corp. , 318 U.S.
80 , 87 (1943) (“The grounds upon which an administrative order
must be judged are those upon which the record discloses that its
action was based”). If an agency’s stated findings and conclusions
withstand scrutiny, the APA does not permit a court to set aside
the decision solely because the agency had “other unstated reasons”
for its decision, such as “political considerations” or the
“Administration’s priorities.” Ante , at 24.

															Unsurprisingly, then, this Court has never held
an agency decision arbitrary and capricious on the ground that its
supporting rationale was “pretextual.” Nor has it previously
suggested that this was even a possibility. Under “settled
propositions” of administrative law, ante , at 23, pretext is
virtually never an appropriate or relevant inquiry for a reviewing
court to undertake.

															Respondents conceptualize pretext as a subset of
“arbitrary and capricious” review. It is far from clear that they
are correct. But even if they were, an agency action is not
arbitrary or capricious merely because the decisionmaker has other,
unstated reasons for the decision. Ante , at 24. Nor is an
agency action arbitrary and capricious merely because the
decisionmaker was “inclined” to accomplish it before confirming
that the law and facts supported that inclination. In re
Dept. of Commerce , 586 U. S. ___, ___ (2018) (Gorsuch, J.,
concurring in part and dissenting in part) (slip op., at 2).

															Accordingly, even under respondents’ approach, a
showing of pretext could render an agency action arbitrary and
capricious only in the infinitesimally small number of cases in
which the administrative record establishes that an agency’s stated
rationale did not factor at all into the decision, thereby
depriving the action of an adequate supporting rationale.[ 4 ] This showing is extremely difficult
to make because the administrative record will rarely, if ever,
contain evidence sufficient to show that an agency’s stated
rationale did not actually factor into its decision. And we have
stated that a “strong showing of bad faith or improper behavior” is
necessary to venture beyond the agency’s “administrative findings”
and inquire into “the mental processes of administrative
decisionmakers.” Overton Park , 401 U. S., at
420.[ 5 ] We have never before
found Overton Park ’s exception satisfied, much less
invalidated an agency action based on “pretext.”

															Undergirding our arbitrary-and-capricious
analysis is our longstanding precedent affording the Executive a
“presumption of regularity.” Id., at 415; see United
States v. Chemical Foundation, Inc. , 272 U.S.
1 , 14–15 (1926). This presumption reflects respect for a
coordinate branch of government whose officers not only take an
oath to support the Constitution, as we do, Art. VI, but also
are charged with “faithfully execut[ing]” our laws, Art. II,
§3. See United States v. Morgan , 313 U.S.
409 , 422 (1941) (presumption of regularity ensures that the
“integrity of the administrative process” is appropriately
respected). In practice, then, we give the benefit of the doubt to
the agency.

															B

															The Court errs at the outset by proceeding
beyond the administrative record to evaluate pretext. Respondents
have not made a “strong showing of bad faith or improper behavior.” Overton Park , supra , at 420.

															The District Court’s initial order granting
extra-record discovery relied on four categories of evidence:

															“evidence that [the Secretary] was
predisposed to reinstate the citizenship question when he took
office; that the [DOJ] hadn’t expressed a desire for more detailed
citizenship data until the Secretary solicited its view; that he
overruled the objections of his agency’s career staff; and that he
declined to order more testing of the question given its long
history.” Dept. of Commerce , 586 U. S., at ___ (slip
op., at 2).

															None of this comes close to showing bad faith or
improper behavior. Indeed, there is nothing even “unusual about a
new cabinet secretary coming to office inclined to favor a
different policy direction, soliciting support from other agencies
to bolster his views, disagreeing with staff, or cutting through
red tape.” Ibid . Today all Members of the Court who reach
the question agree that the District Court abused its discretion in
ordering extra-record discovery based on this evidence. Ante , at 25 (“We agree with the Government that the District
Court should not have ordered extra-record discovery when it
did”).

															Nevertheless, the Court excuses the error
because, in its view, “the new material that the parties [later]
stipulated should have been part of the administrative record
. . . largely justified such extra-record discovery as
occurred.” Ibid. Given the requirement that respondents make
a “strong showing” of bad faith, one would expect the Court to
identify which “new material” supported such a showing. It does
not. Nor does the Court square its suggestion that some of the
extra-record discovery was not “justified” with its
consideration of “all . . . the extra-record discovery.” Ante , at 25–26 . Regardless, I assume that the Court
has in mind the administrative-record materials that the District
Court would later rely on to establish pretext:

															“evidence that [the Secretary] had made
the decision to add the citizenship question well before DOJ
requested its addition in December 2017; the absence of any
mention, at all , of VRA enforcement in the discussions of
adding the question that preceded the [DOJ] Letter; unsuccessful
attempts by Commerce Department staff to shop around for a request
by another agency regarding citizenship data; and [the Secretary’s]
personal outreach to Attorney General Sessions, followed by the
[DOJ] Letter; not to mention the conspicuous procedural
irregularities that accompanied the decision to add the question.”
351 F. Supp. 3d, at 661 (citations omitted).

															This evidence fails to make a strong showing of
bad faith or improper behavior. Taken together, it proves at most
that the Secretary was predisposed to add a citizenship question to
the census and took steps to achieve that end before settling on
the VRA rationale he included in his memorandum. Perhaps he had
reasons for adding the citizenship question other than the VRA, but
by the Court’s own telling, that does not amount to evidence of bad
faith or improper behavior. Ante , at 24; see Dept. of
Commerce , supra , at ___ (slip op., at 2).

															The Court thus errs in relying on materials
outside the record to support its holding. And the Court does not
claim that the evidence in the administrative record alone would
prove that the March 2018 memorandum was a pretext. Given the
presumption of regularity, the evidence discussed above falls far
short of establishing that the VRA rationale did not factor at all
into the Secretary’s decision.

															C

															Even if it were appropriate for the Court to
rely on evidence outside the administrative record, that evidence
still fails to establish pretext. None of the evidence cited by the
Court or the District Court comes close to showing that the
Secretary’s stated rationale — that adding a citizenship
question to the 2020 census questionnaire would “provide
. . . data that are not currently available” and “permit
more effective enforcement of the [VRA],” App. to Pet. for Cert.
548a—did not factor at all into his decision.

															Once again, the evidence cited by the Court
suggests at most that the Secretary had “other unstated reasons”
for reinstating the citizenship question. Ante , at 24. For
example, the Court states that the Secretary’s Director of Policy
“initially attempted to elicit requests for citizenship data from
the Department of Homeland Security and DOJ’s Executive Office for
Immigration Review.” Ante , at 27. But this hardly shows
pretext. It simply suggests that the Director believed that
citizenship information could be useful in tackling problems
related to national security and illegal immigration—a view that
would also explain why the Secretary might not have been
“considering VRA enforcement” early on. Ibid. ; see also
American Community Survey, Why We Ask: Place of Birth, Citizenship
and Year of Entry (2016) (explaining that inquiries about “place of
birth, citizenship, and year of entry” provide statistics that are
“essential for agencies and policy makers setting and evaluating
immigration policies and laws, understanding how different
immigrant groups are assimilated, and monitoring against
discrimination”), https://
www2 . census . gov / programs - surveys / acs / about / qbyqfact /
2016/Citizenship.pdf (as last visited June 25, 2019).

															The Court emphasizes that the VRA rationale for
the citizenship question originated in the Department of Commerce,
and suggests that DOJ officials unthinkingly fell in line after the
Attorney General was looped into the process. See ante , at
27. But the Court ignores that the letter was drafted by the
then-Acting Assistant Attorney General for Civil Rights and
reviewed by five other DOJ attorneys, including the Chief of the
DOJ’s Voting Section. 351 F. Supp. 3d, at 554–556. Given the
DOJ’s multilayer review process and its explanation for requesting
citizenship data, the Court’s suggestion that the DOJ’s letter was
inadequately vetted or improperly “influence[d]” by the Department
of Commerce is entirely unsupported. Ante , at 27. In any
event, none of this suggests, much less proves, that the Secretary
harbored an unstated belief that adding the citizenship question
would not help enforce the VRA, or that the VRA rationale
otherwise did not factor at all into his decision. It simply
suggests that a number of executive officials agreed that adding a
citizenship question would support VRA enforcement.

															The Court’s other evidence is even further
afield. The Court thinks it telling that the DOJ’s letter included
“a specific request that Commerce collect the [citizenship] data by
means of reinstating a citizenship question on the census,” rather
than a more open-ended “entreaty for better citizenship data.” Ibid. I do not understand how the specificity of the DOJ’s
letter bears on whether the Secretary’s rationale was
pretextual—particularly since the letter specifically explained why
“census questionnaire data regarding citizenship, if available,
would be more appropriate for use in redistricting and in [VRA]
litigation” than existing data. App. to Pet. for Cert. 568a; see id. , at 567a–568a. Unless the Court is now suggesting that
agency correspondence must comply with the Court’s subjective,
unsupported view of what “might” constitute a “typical request from
another agency,” ante , at 27, the specificity of the DOJ’s
letter is irrelevant. The Court also points to the DOJ’s decision
not to meet with the Census Bureau “to discuss alternative ways to
meet DOJ’s stated need for improved citizenship data.” Ibid. But the Court does not explain how the DOJ’s refusal bears on the Secretary’s rationale. Besides, it is easy to understand why
DOJ officials would not be interested in meeting with the Census
Bureau. The meeting would have been with career employees whose
acknowledged purpose was to talk the DOJ out of its request. See
351 F. Supp. 3d, at 557. Having already considered the issue
and explained the rationale behind the request, it seems at least
plausible that the DOJ officials believed such a meeting would be
unproductive.

															In short, the evidence cited by the Court
establishes, at most, that leadership at both the Department of
Commerce and the DOJ believed it important—for a variety of
reasons—to include a citizenship question on the census.

															The Court also fails to give credit where it is
due. The Secretary initiated this process inclined to favor what he
called “Option B”—that is, simply “add[ing] a citizenship question
to the decennial census.” App. to Pet. for Cert. 552a. But the
Census Bureau favored “Option C”—relying solely on “administrative
records” to supply the information needed by the DOJ. Id. ,
at 554a. The Secretary considered this view and found it a
“potentially appealing solution,” ibid. , but concluded that
it had shortcomings. Rather than revert to his original
inclination, however, he “asked the Census Bureau to develop a
fourth alternative, Option D, which would combine Options B and C.” Id. , at 555a. And he settled on that solution. Whatever one
thinks of the Secretary’s choice, his willingness to change his
mind in light of the Bureau’s feedback belies the idea that his
rationale or decisionmaking process was a pretext.

															The District Court’s lengthy opinion pointed to
other facts that, in its view, supported a finding of pretext. 351
F. Supp. 3d, at 567–572, 660–664 (discussing the statements,
e-mails, acts, and omissions of numerous people involved in the
process). I do not deny that a judge predisposed to distrust the
Secretary or the administration could arrange those facts on a
corkboard and—with a jar of pins and a spool of string—create an
eye-catching conspiracy web. Cf. id. , at 662 (inferring
“from the various ways in which [the Secretary] and his aides acted
like people with something to hide that they did have
something to hide”). But the Court does not rely on this evidence,
and rightly so: It casts no doubt on whether the Secretary’s stated
rationale factored into his decision. The evidence suggests, at
most, that the Secretary had multiple reasons for wanting to
include the citizenship question on the census.

															Finally, if there could be any doubt about this
conclusion, the presumption of regularity resolves it. Where there
are equally plausible views of the evidence, one of which involves
attributing bad faith to an officer of a coordinate branch of
Government, the presumption compels giving the benefit of the doubt
to that officer.

															III

															The Court’s erroneous decision in this case is
bad enough, as it unjustifiably interferes with the 2020 census.
But the implications of today’s decision are broader. With today’s
decision, the Court has opened a Pandora’s box of pretext-based
challenges in administrative law.

															Today’s decision marks the first time the Court
has ever invalidated an agency action as “pretextual.” Having taken
that step, one thing is certain: This will not be the last time it
is asked to do so. Virtually every significant agency action is
vulnerable to the kinds of allegations the Court credits today.
These decisions regularly involve coordination with numerous
stakeholders and agencies, involvement at the highest levels of the
Executive Branch, opposition from reluctant agency staff,
and—perhaps most importantly—persons who stand to gain from the
action’s demise. Opponents of future executive actions can be
expected to make full use of the Court’s new approach.

															The 2015 “Open Internet Order” provides a case
in point. In 2015, the Federal Communications Commission (FCC)
adopted a controversial order reclassifying broadband Internet
access service as a “telecommunications service” subject to
regulation under Title II of the Communications Act. See In re Protecting and Promoting the Open
Internet , 30 FCC Rcd. 5601, 5618 (2015). According to a
dissenting Commissioner, the FCC “flip-flopp[ed]” on its previous
policy not because of a change in facts or legal understanding, but
based on “one reason and one reason alone. President Obama told us
to do so.” Id., at 5921 (statement of Comm’r Pai). His view
was supported by a 2016 congressional Report in which Republican
Senate staff concluded that “the FCC bent to the political pressure
of the White House” and “failed to live up to standards of
transparency.” Majority Staff Report, Senate Committee on Homeland
Security and Governmental Affairs, Regulating the Internet: How the
White House Bowled Over FCC Independence, 114th Cong., 1st Sess.,
29 (Comm. Print 2016). The Report cited evidence strikingly similar
to that relied upon by the Court here—including agency-initiated
“meetings with certain outside groups to support” the new result, id. , at 3; “apparen[t] . . . concern from the
career staff that there was insufficient notice to the public and
affected stakeholders,” id., at 4; and “regula[r]
communicatio[n]” between the FCC Chairman and “presidential
advisors,” id. , at 25.

															Under the malleable standard applied by the
Court today, a serious case could be made that the Open Internet
Order should have been invalidated as “pretextual,” regardless of
whether any “particular step in the process stands out as
inappropriate or defective.” Ante , at 26. It is enough,
according to the Court, that a judge believes that the ultimate
rationale “seems to have been contrived” when the evidence is
considered “as a whole.” Ante , at 26, 28.

															Now that the Court has opened up this avenue of
attack, opponents of executive actions have strong incentives to
craft narratives that would derail them. Moreover, even if the
effort to invalidate the action is ultimately unsuccessful, the
Court’s decision enables partisans to use the courts to harangue
executive officers through depositions, discovery, delay, and
distraction. The Court’s decision could even implicate
separation-of-powers concerns insofar as it enables judicial
interference with the enforcement of the laws.

															In short, today’s decision is a departure from
traditional principles of administrative law. Hopefully it comes to
be understood as an aberration—a ticket good for this day and this
train only.

															*  *  *

															Because the Secretary’s decision to reinstate
a citizenship question on the 2020 census was legally sound and a
reasoned exercise of his broad discretion, I respectfully dissent
from Part V of the opinion of the Court. Notes 1 Justice Kavanaugh and I
join Parts I, II, III, and IV of the opinion of the Court. Justice
Gorsuch joins Parts I, II, III, IV–B, and IV–C. 2 Justice Alito has made a
strong argument that the specific decision at issue here—whether to
include a citizenship question on the census—is a matter “committed
to agency discretion by law.” 5 U. S. C. §701(a)(2); see post , at 3 (opinion concurring in part and dissenting in
part). As he explains, the Secretary’s decision plainly falls
within the scope of the Secretary’s constitutional authority, does
not implicate any statutory prohibition, and is among the
“inquiries” and “content[s]” of the census that the Secretary is
expressly directed to “determine” for himself. §§5, 141(a); see post , at 5–15. Nevertheless, I assume, for the purpose of
this opinion, that the Secretary’s decision is subject to judicial
review. 3 Deferential review of the
agency’s discretionary choices and reasoning under the
arbitrary-and-capricious standard stands in marked contrast to a
court’s plenary review of the agency’s interpretation and
application of the law. See §§706(A)–(D) (court must review agency
action to ensure that it complies with all “constitutional,”
“statutory,” and “procedur[al]” requirements, and is otherwise “in
accordance with law”). 4 We do not have before us
a claim that information outside the administrative record calls
into question the legality of an agency action based on an
unstated, unlawful bias or motivation ( e.g. , a claim of
religious discrimination under the Free Exercise Clause). But to
the extent such a claim is viable, the analysis would have nothing
to do with the arbitrary-and-capricious review pressed by
respondents. See §§706(2)(A)–(C) (addressing agency actions that
violate “constitutional” or “statutory” requirements, or that
“otherwise [are] not in accordance with law”). 5 Insofar as Overton
Park authorizes an exception to review on the administrative
record, it has been criticized as having “no textual grounding in
the APA” and as “created by the Court, without citation or
explanation, to facilitate Article III review.” Gavoor & Platt,
Administrative Records and the Courts, 67 U. Kan. L. Rev. 1,
44 (2018); see id., at 22 (further arguing that the
exception was “neither presented by the facts of the case nor
briefed by the parties”). The legitimacy and scope of the
exception—which by its terms contemplates only “administrative
officials who participated in the decision . . . giv[ing]
testimony explaining their action,” Overton Park , 401
U. S., at 420—is an important question that may warrant future
consideration. But because the Court’s holding is incorrect
regardless of the validity of the Overton Park exception, I
will apply it here. SUPREME COURT OF THE UNITED STATES

															_________________

															No. 18–966

															_________________

															DEPARTMENT OF COMMERCE, et al., PETITIONERS v. NEW YORK, et al.

															on writ of certiorari before judgment to the
united states court of appeals for the second circuit

															[June 27, 2019]

															Justice Breyer, with whom Justice Ginsburg,
Justice Sotomayor, and Justice Kagan join, concurring in part and
dissenting in part.

															I join Parts I, II, IV–A, and V of the Court’s
opinion (except as otherwise indicated in this opinion). I dissent,
however, from the conclusion the Court reaches in Part IV–B. To be
more specific, I agree with the Court that the Secretary of
Commerce provided a pretextual reason for placing a question about
citizenship on the short-form census questionnaire and that a
remand to the agency is appropriate on that ground. But I write
separately because I also believe that the Secretary’s decision to
add the citizenship question was arbitrary and capricious and
therefore violated the Administrative Procedure Act (APA).

															There is no serious dispute that adding a
citizenship question would diminish the accuracy of the enumeration
of the population—the sole constitutional function of the census
and a task of great practical importance. The record demonstrates
that the question would likely cause a disproportionate number of
noncitizens and Hispanics to go uncounted in the upcoming census.
That, in turn, would create a risk that some States would
wrongfully lose a congressional representative and funding for a
host of federal programs. And, the Secretary was told, the adverse
consequences would fall most heavily on minority communities. The
Secretary decided to ask the question anyway, citing a need for
more accurate citizenship data. But the evidence indicated that
asking the question would produce citizenship data that is less accurate, not more. And the reason the Secretary gave
for needing better citizenship data in the first place—to help
enforce the Voting Rights Act of 1965—was not convincing.

															In short, the Secretary’s decision to add a
citizenship question created a severe risk of harmful consequences,
yet he did not adequately consider whether the question was
necessary or whether it was an appropriate means of achieving his
stated goal. The Secretary thus failed to “articulate a
satisfactory explanation” for his decision, “failed to consider
. . . important aspect[s] of the problem,” and “offered
an explanation for [his] decision that runs counter to the
evidence,” all in violation of the APA. Motor Vehicle Mfrs.
Assn. of United States , Inc. v. State Farm Mut.
Automobile Ins. Co. , 463 U.S.
29 , 43 (1983). These failures, in my view, risked undermining
public confidence in the integrity of our democratic system itself.
I would therefore hold that the Secretary’s decision—whether
pretextual or not—was arbitrary, capricious, and an abuse of
discretion.

															I

															A

															Three sets of laws determine the legal outcome
of this case. First, the Constitution requires an “actual
Enumeration” of the “whole number of persons in each State” every
10 years. Art. I, §2, cl. 3; Amdt. 14, §2. It does so in order to
“provide a basis for apportioning representatives among the states
in the Congress.” Baldrige v. Shapiro , 455 U.S.
345 , 353 (1982); see also Art. I, §2, cl. 3. The inclusion
of this provision in the Constitution itself underscores the
importance of conducting an accurate census. See Utah v. Evans , 536 U.S.
452 , 478 (2002) (recognizing “a strong constitutional interest
in [the] accuracy” of the enumeration).

															Second, the Census Act contains two directives
that constrain the Secretary’s ability to add questions to the
census. Section 195 says that the Secretary “shall, if he considers
it feasible,” authorize the use of statistical “sampling” in
collecting demographic information. That means the Secretary must,
if feasible, obtain demographic information through a survey sent
to a sample of households, rather than through the
short-form census questionnaire to which every household
must respond. The other relevant provision, §6(c), says that
“[ t ] o the maximum extent possible and consistent with
the kind, timeliness, quality and scope of the statistics required,
the Secretary shall acquire and use information available” from
administrative sources “instead of conducting direct inquiries.”
(Emphasis added.) These provisions, taken together, reflect a
congressional preference for keeping the short form short, so that
it does not burden recipients and thereby discourage them from
responding.

															Third, the APA prohibits administrative agencies
from making choices that are “arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law.” 5
U. S. C. §706(2)(A). We have said that courts, in
applying this provision, must decide “whether the decision was
based on a consideration of the relevant factors and whether there
has been a clear error of judgment.” Citizens to Preserve
Overton Park , Inc. v. Volpe , 401 U.S.
402 , 416 (1971). The agency must have “examine[d] the relevant
data and articulate[d] a satisfactory explanation for its action[,]
including a ‘rational connection between the facts found and the
choice made.’ ” State Farm , 463 U. S., at 43. An
agency ordinarily fails to meet this standard if it has “failed to
consider an important aspect of the problem, offered an explanation
for its decision that runs counter to the evidence before the
agency, or is so implausible that it could not be ascribed to a
difference in view or the product of agency expertise.” Ibid. Courts do not apply these principles of
administrative law mechanically. Rather, they take into account,
for example, the nature and importance of the particular decision,
the relevance and importance of missing information, and the
inadequacies of a particular explanation in light of their
importance. The Federal Government makes tens of thousands, perhaps
millions, of administrative decisions each year. And courts would
be wrong to expect or insist upon administrative perfection. But
here, the Enumeration Clause, the Census Act, and the nature of the
risks created by the agency’s decision all make clear that the
decision before us is highly important to the proper functioning of
our democratic system. It is therefore particularly important that
courts here not overlook an agency’s (1) failure to consider
serious risks of harm, (2) failure to explain its refusal to
minimize those risks, or (3) failure to link its conclusion to
available evidence. My view, like that of the District Court, is
that the agency here failed on all three counts.

															B

															A brief history of how the census has worked
over the years will help the reader understand some of the
shortcomings of the Secretary’s decisionmaking process. The Framers
wrote into the Constitution a mandate to conduct an “actual
Enumeration” of the population every 10 years. Art. I, §2,
cl. 3. They did so for good reason. The purpose of the census
is to “provide a basis for apportioning representatives among the
states in the Congress,” Baldrige , 455 U. S., at 353,
ensuring that “comparative state political power in the House
. . . reflect[s] comparative population,” Evans ,
536 U. S., at 477. The Framers required an actual count of
every resident to “limit political chicanery” and to prevent the
census count from being “skewed for political . . .
purposes.” Id. , at 500 (Thomas, J., concurring in part and
dissenting in part).

															Throughout most of the Nation’s history, the
Federal Government used enumerators, often trained census takers,
to conduct the census by going door to door. The enumerators would
ask a host of questions, including place of birth, citizenship, and
others. But after the 1950 census, the Bureau began to change its
approach. Post-census studies revealed that the census had failed
to count more than 5 million people and that the undercount
disproportionately affected members of minority groups. See M.
Anderson, The American Census: A Social History 201−202 (1988);
Brief for Historians and Social Scientists as Amici Curiae 15. Studies showed that statistical sampling would produce higher
quality data. Anderson, American Census, at 201.

															Beginning with the 1960 census, the Bureau
consequently divided its questioning into a short form and a long
form. The short form contained a list of questions—a short
list—that the census would ask of every household. That list
included basic demographic questions like sex, age, race, and
marital status. The short form did not include, and has never
included, a question about citizenship. See ibid. ; Dept. of
Commerce, U. S. Census Bureau, Measuring America: The
Decennial Censuses From 1790 to 2000, p. 128 (2002). By way of
contrast, the long form set forth a host of questions that would be
asked of only a sample of households. In 1960, the long form was
sent to one in every four households; in subsequent years, it was
sent to approximately one in every six. See 351 F. Supp. 3d
502, 520 (SDNY 2019). And it was more recently replaced by the
American Community Survey (ACS), which is sent to approximately 1
in 38 households each year. The long form (and now the ACS) has
often included a question about citizenship.

															In 1970, the Census Bureau made another
important change to the census. It significantly reduced its
reliance upon in-person enumerators. See Anderson, supra , at
206. Instead, it sent nearly all households a questionnaire by
mail. Most households received the short form, and a small sample
received the long form. Instructions on the form told each
household to fill out the questionnaire and return it to the Census
Bureau by mail. Enumerators would follow up with households that
did not return the questionnaire.

															To maximize accuracy and minimize cost, the
Bureau tried to bring about the highest possible “self-response”
rate, i.e. , to encourage as many households as possible to
respond by mail. For that reason, it tried to keep the short form
as short as possible. And it consistently opposed placing a
citizenship question on that form. It feared that adding a question
about citizenship would “inevitably jeopardize the overall accuracy
of the population count,” partly because of added response burden
but also because, as it explained, noncitizens faced with a
citizenship question would be less likely to respond due to fears
of “the information being used against them.” Federation for Am.
Immigration Reform v. Klutznick , 486 F. Supp. 564 , 568 (DC 1980).

															Likely for similar reasons, Congress amended the
Census Act in 1976, enacting the two statutory provisions to which
I previously referred. These two provisions, 13 U. S. C.
§6(c) and §195, together encourage the Secretary not to ask
demographic questions on the short form if the information can be
obtained either through the long form or through administrative
records.

															II

															With this statutory and historical background,
we can more easily consider the agency decision directly under
review. That decision “reinstate[s] [a] citizenship question on the
2020 decennial census.” App. to Pet. for Cert. 549a−550a
(Memorandum from Wilbur L. Ross, Jr., Secretary of Commerce, to
Karen Dunn Kelley, Under Secretary for Economic Affairs (Mar. 26,
2018)). The agency’s decision memorandum provided one and only one
reason for making that decision—namely, that the question was
“necessary to provide complete and accurate data in response to” a
request from the Department of Justice (DOJ). Id. , at 562a.
The DOJ had requested the citizenship question for “use [in]
. . . determining violations of Section 2 of the Voting
Rights Act.” Id. , at 548a.

															The decision memorandum adds that the agency had
not been able to “determine definitively how inclusion of a
citizenship question on the decennial census will impact
responsiveness. However, even if there is some impact on responses,
the value of more complete and accurate data derived from surveying
the entire population outweighs such concerns.” Id. , at
562a. The Secretary’s decision thus rests upon a weighing of
potentially adverse consequences (diminished responses and a less
accurate census count) against potentially offsetting advantages
(better citizenship data). In my view, however, the Secretary did
not make reasonable decisions about these potential costs and
benefits in light of the administrative record.

															A

															Consider first the Secretary’s conclusion that
he was “not able to determine definitively how inclusion of a
citizenship question on the decennial census will impact
responsiveness.” Ibid. Insofar as this statement implies
that adding the citizenship question is unlikely to affect
“responsiveness” very much (or perhaps at all), the evidence in the
record indicates the contrary.

															1

															The administrative record includes repeated
Census Bureau statements that adding the question would produce a
less accurate count because noncitizens and Hispanics would be less
likely to respond to the questionnaire. See App. 105, 109–112, 158.
The Census Bureau’s chief scientist said specifically that adding
the question would have “an adverse impact on self-response and, as
a result, on the accuracy and quality of the 2020 Census.” Id. , at 109. And the chief scientist backed this statement
up by pointing to “[t]hree distinct analyses.” Ibid. The first analysis compared nonresponse rates
for the short-form census questionnaire (which did not include a
citizenship question) to nonresponse rates for the ACS (which did).
Obviously, more people fail to respond to the ACS than to the short
form. Yet taking into account the fact that the nonresponse rate
will be greater for the ACS than for the short form, the Bureau
found that the difference between the two is yet greater for
noncitizen households than for citizen households (by 5.1%,
according to the Bureau). Id. , at 111. This led the Bureau
to say that it was a “reasonable inference” that the presence of
the citizenship question accounted for the difference. Ibid. The Bureau conducted two additional studies,
both analyzing data from the ACS. One study looked at response
rates for particular questions on the ACS. It showed that the “no
answer” rate for the citizenship question was “much greater than
the comparable rates” for other census questions (for example,
questions about age, sex, race, and ethnicity). Id. , at 110.
And it showed that the “no answer” rate for the citizenship
question was significantly higher among Hispanics. Id. , at
109−110. The last study examined “break-off” rates, i.e. ,
the rate at which respondents stopped answering the questionnaire
upon reaching a particular question. It found that Hispanics were
significantly more likely than were non-Hispanics to stop answering
at the point they reached the citizenship question. Id. , at
112. Together, these two studies provided additional support for
the Census Bureau’s determination that the citizenship question is
likely to mean disproportionately fewer responses from noncitizens
and Hispanics than from others. Ibid. Putting numbers upon these study results, the
Census Bureau estimated that adding the question to the short form
would lead to 630,000 additional nonresponding households. Id. , at 114. That is to say, the question would cause
households covering more than 1 million additional people to
decline to respond to the census. When the Bureau does not receive
a response, it follows up with in-person interviews in an effort to
obtain the missing information. The Bureau often interviews what it
calls “proxies,” such as family members and neighbors. But this
followup process is subject to error; and the error rate is much
greater than the error rate for self-responses. Ibid. The
Bureau thus explained that lower self-response rates “degrade data
quality” by increasing the risk of error and leading to hundreds of
thousands of fewer correct enumerations. Id. , at 113−115.
The Bureau added that its estimate was “conservative.” Id. ,
at 115. It expected “differences between citizen and noncitizen
response rates and data quality” to be “amplified” in the 2020
census “compared to historical levels.” Ibid. Thus, it
explained, “the decrease in self-response for citizen households in
2020 could be much greater than the 5.1 percentage points [it]
observed during the 2010 Census.” Id. , at 115−116. Its
conclusion in light of this evidence was clear. Adding the
citizenship question to the short form was “very likely to reduce
the self-response rate” and thereby “har[m] the quality of the
census count.” Id. , at 105, 158.

															The Census Bureau’s analysis received support
from other submissions. Several States pointed out that noncitizens
and racial minorities had been undercounted in every prior census.
Administrative Record 1091−1092. They also drew attention to recent
surveys indicating that noncitizens had significant concerns about
the confidentiality of census responses. Ibid. Former
directors of the Census Bureau wrote that adding the citizenship
question so late in the process “would put the accuracy of the
enumeration and success of the census in all communities at grave
risk.” Id. , at 1057. The American Sociological Association
and Census Scientific Advisory Committee echoed these warnings. See id. , at 787, 794−795. On the other hand, the Secretary
received submissions by other groups that supported adding the
question. See, e.g. , id. , at 1178−1179, 1206, 1276.
But as far as I can tell (or as far as the arguments made here and
in the District Court inform the matter), none of these latter
submissions significantly added to, or detracted from, the Census
Bureau’s submissions in respect to the question’s likely impact on
response rates.

															2

															The Secretary’s decision memorandum reached a
quite different conclusion from the Census Bureau. The memorandum
conceded that “a lower response rate would lead to . . .
less accurate responses.” App. to Pet. for Cert. 556a. But it
concluded that neither the Census Bureau nor any stakeholders had
provided “definitive, empirical support” for the proposition that
the citizenship question would reduce response rates. Id. ,
at 554a. The memorandum relied for that conclusion upon a number of
considerations, but each is contradicted by the record.

															The memorandum first pointed to perceived
shortcomings in the Census Bureau’s analysis of nonresponse rates.
It noted that response rates are generally lower overall for the
long form and ACS than they are for the short form. Id. , at
552a−554a. But the Bureau explained that its analysis accounted for
this consideration, see App. 111, and no one has given us reason to
think the contrary. The Secretary also noted that the Bureau “was
not able to isolate what percentage of [the] decline was caused by
the inclusion of a citizenship question rather than some other
aspect of the long form survey.” App. to Pet. for Cert. 554a. But
the Bureau said attributing the decline to the citizenship question
was a “reasonable inference,” App. 111, and again, nothing in the
record contradicted the Bureau’s judgment. And later analyses have
borne out the Bureau’s judgment that the citizenship question
contributes to the decline in self-response. See, e.g. , id. , at 1002−1006, 1008 (August 2018 Census Bureau
study).

															The memorandum next cast doubt on the Census
Bureau’s analysis of the rate at which people responded to
particular questions on the ACS. It noted that the “no answer” rate
to the citizenship question was comparable to the “no answer” rate
for other questions on the ACS, including educational attainment,
income, and property insurance. App. to Pet. for Cert. 553a. But as
discussed above, the Bureau found it significant that the “no
answer” rate for the citizenship question was “much greater” than
the “no answer” rate for the other questions that appear on the short form —that is, the form on which the citizenship
question would appear. App. 110, 124. The Secretary offered no
reason why the demographic variables to which he pointed provided a
better point of comparison.

															Finally, the memorandum relied on information
provided by two outside stakeholders. The first was a study
conducted by the private survey company Nielsen, in which questions
about place of birth and time of arrival had not led to any
appreciable decrease in the response rate. App. to Pet. for Cert.
552a. But Nielsen, which in fact urged the Secretary not to
add the question, stated that its respondents (unlike census
respondents) were paid to respond, and it is consequently
not surprising that they did so. Administrative Record 1276. The
memo- randum also cited statements by former Census Bureau
officials suggesting that empirical evidence about the question’s
potential impact on response rates was “limited.” App. to Pet. for
Cert. 558a−559a; see also id. , at 552a. But there was no
reason to expect the former officials to provide more extensive
empirical evidence as to a citizenship question when they were not
privy to the internal Bureau analyses on this question. And, like
Nielsen, the former officials strongly urged the Secretary not to ask the question. See Administrative Record 1057.

															The upshot is that the Secretary received
evidence of a likely drop in census accuracy by a number somewhere
in the hundreds of thousands, and he received nothing significant
to the contrary. The Secretary pointed out that the Census Bureau’s
information was uncertain, i.e. , not “definitive.” But that
is not a satisfactory answer. Few public-policy-related statistical
studies of risks (say, of many health or safety matters) are
definitive. As the Court explained in State Farm , “[i]t is
not infrequent that the available data do not settle a regulatory
issue, and the agency must then exercise its judgment in moving
from the facts and probabilities on the record to a policy
conclusion.” 463 U. S., at 52. But an agency confronted with
this situation cannot “merely recite the terms ‘substantial
uncertainty’ as a justification for its actions.” Ibid. Instead, it “must explain the evidence which is available” and
typically must offer a reasoned explanation for taking action
without “engaging in a search for further evidence.” Ibid. The Secretary did not do so here. He did not
explain why he made the decision to add the question without
following the Bureau’s ordinary practice of extensively testing
proposed changes to the census questionnaire. See App. 624−630, 641
(discussing testing process); see also, e.g. , Brief for
Former Census Bureau Directors as Amici Curiae 17−21
(discussing prior examples of questions that the Bureau decided not
to add after many years of pretesting). Without that testing, the
Secretary could not treat the Bureau’s expert opinions and its
experience with the relevant surveys as worthless merely because
its conclusions were not precise. The Bureau’s opinions were
properly considered as evidence of likelihoods, probabilities, or
risks.

															As noted above, the consequences of mistakes in
the census count, of even a few hundred thousand, are grave.
Differences of a few thousand people, as between one State and
another, can mean a loss or gain of a congressional seat—a matter
of great consequence to a State. See 351 F. Supp. 3d, at 594.
And similar small differences can make a large difference to the
allocation of federal funds among competing state programs. Id. , at 596−597; see also Baldrige , 455 U. S.,
at 353−354, n. 9. If near-absolute certainty is what the
Secretary meant by “definitive,” that insistence would itself be
arbitrary in light of the constitutional and statutory consequences
at stake. And if the Secretary instead meant that the evidence does
not indicate a serious risk of a less accurate count, that
conclusion does not find support in the record.

															B

															Now consider the Secretary’s conclusion that,
even if adding a citizenship question diminishes the accuracy of
the enumeration, “the value of more complete and accurate data
derived from surveying the entire population outweighs . . . concerns” about diminished accuracy. App. to Pet.
for Cert. 562a (emphasis added). That conclusion was also
arbitrary. The administrative record indicates that adding a
citizenship question to the short form would produce less “complete
and accurate data,” not more.

															1

															The Census Bureau informed the Secretary that,
for about 90% of the population, accurate citizenship data is
available from administrative records maintained by the Social
Security Administration and Internal Revenue Service. App. 146. The
Bureau further informed the Secretary that it had “high confidence”
that it could develop a statistical model that would accurately
impute citizenship status for the remaining 10% of the population. Ibid. The Bureau stated that these methods alone—using
existing administrative records for 90% of the population and
statistical modeling for the remaining 10%—would yield more
accurate citizenship data than also asking a citizenship question. Id. , at 159. How could that be so? The answer is somewhat
technical but readily understandable. First , consider the 90% of the population
(about 295 million people) as to whom administrative records are
available. The Government agrees that using these administrative
records would provide highly reliable information about
citizenship, because the records “require proof of citizenship.” Id. , at 117. By contrast, if responses to a citizenship
question were used for this group, the Census Bureau predicted
without contradiction that about one-third of the noncitizens in
this group who respond would answer the question untruthfully,
claiming to be citizens when they are not. Id. , at 147.
Those incorrect answers—about 9.5 million in total—would conflict
with the administrative records on file for those noncitizens. And
what would the Census Bureau do with the conflicting data? If it
accepts the answer to the citizenship question as determinative, it
will have less accurate data. If it accepts the citizenship data
from administrative records as determinative, asking the question
will have served no purpose.

															Thus, as to 295 million people—the overwhelming
majority of the population—asking the citizenship question would at
best add nothing at all. I say “at best” because, for one thing,
the Census Bureau informed the Secretary that asking the question
would produce 1 million more people who could not be linked to
administrative records, which in turn would require the Census
Bureau to resort to a less accurate source of citizenship data for
these people. See id. , at 147−149; see also 351
F. Supp. 3d, at 538−539. For another, the policy of the Census
Bureau has always been to use census responses rather than
administrative records in cases where the two conflict. App. 147.
In this case, that practice would mean accepting 9.5 million
inaccurate responses even though accurate administrative records
are available. See ibid. The Census Bureau could perhaps
change that practice, but the Secretary’s decision memorandum said
nothing about the matter. It did not address the problem. Second , consider the remaining 10% of the
population (about 35 million people) for whom the Government lacks
administrative records. The question here is which approach would
yield the most “complete and accurate” citizenship data for this
group—adding a citizenship question or using statistical modeling
alone? To answer this question, we must further divide this group
into two categories—those who would respond to the citizenship
question if it were asked and those who would not.

															Start with the category of about 22 million
people who would answer a citizenship question if it were asked.
Would their answers regarding citizenship be more accurate than
citizenship data produced by statistical modeling? The Census
Bureau said no. That is because many of the noncitizens in this
group would answer the question falsely, resulting in an estimated
500,000 inaccurate answers. See id. , at 148. And those who
answer the question falsely would be commingled, perhaps randomly,
with those who answer it correctly, thereby casting doubt on the
answers of all 22 million, with no way of knowing which answers are
correct and which are false. By contrast, the Bureau believed that
it could develop a statistical model that would produce more
accurate citizenship data than these census responses. The Bureau
therefore informed the Secretary that it could do better. As the
Bureau’s chief scientist explained, although “[o]ne might think”
that asking the question “could help fill the . . . gaps”
in the administrative records, the data did not support that
assumption. Id. , at 157. Instead, he explained, responses to
the citizenship question “may not be reliable,” which “calls into
question their ability to improve upon” the Bureau’s statistical
modeling process. Ibid. Next, turn to the more than 13 million remaining
people who would not answer the citizenship question even if it
were asked. As to this category, the Census Bureau would still
need to use statistical modeling to obtain citizenship data,
because there would be no census response to use instead. Hence,
asking the citizenship question would add nothing at all as to this
group. To the contrary, as the Government concedes, asking the
question would reduce the accuracy of the citizenship data
for this group, because the relatively inaccurate answers to the
citizenship question would diminish the overall accuracy of the
Census Bureau’s statistical model. See Brief for Petitioners 34
(conceding that the Census Bureau model will be “highe[r] quality”
without the question than with it); 351 F. Supp. 3d, at 640
(explaining that asking the question would “corrup[t]
. . . the data generated by extrapolating from
self-responses through imputation”).

															In sum, in respect to the 295 million persons
for whom administrative records exist, asking the question on the
short form would, at best, be no improvement over using
administrative records alone. And in respect to the remaining 35
million people for whom no administrative records exist, asking the
question would be no better, and in some respects would be worse,
than using statistical modeling. The Census Bureau therefore told
the Secretary that asking the citizenship question, even in
addition to using administrative records, “would result in poorer
quality citizenship data” than using administrative records alone,
and would “still have all the negative cost and quality
implications” of asking the citizenship question. App. 159. I could
find no evidence contradicting that prediction.

															2

															If my description of the record is correct, it
raises a serious legal problem. How can an agency support the
decision to add a question to the short form, thereby risking a
significant undercount of the population, on the ground that it
will improve the accuracy of citizenship data, when in fact
the evidence indicates that adding the question will harm the accuracy of citizenship data? Of course it cannot. But, as I
have just said, I have not been able to find evidence to suggest
that adding the question would result in more accurate citizenship
data. Neither could the District Court. After reviewing the record
in detail, the District Court found that “all of the relevant
evidence before Secretary Ross— all of it—demonstrated that
using administrative records . . . would actually produce
more accurate [citizenship] data than adding a citizenship question
to the census.” 351 F. Supp. 3d, at 650.

															What consideration did the Secretary give to
this problem? He stated simply that “[a]sking the citizenship
question of 100 percent of the population gives each respondent the
opportunity to provide an answer,” which “may eliminate the need
for the Census Bureau to have to impute an answer for millions of
people.” App. to Pet. for Cert. 556a. He therefore must have
assumed, sub silentio , exactly what the Census Bureau
experts urged him not to assume—that answers to the citizenship
question would be more accurate than statistical modeling. And he
ignored the undisputed respects in which asking the question would
make the existing data less accurate. Other than his assumption,
the Secretary said nothing, absolutely nothing, to suggest a
reasoned basis for disagreeing with the Bureau’s expert statistical
judgment.

															The Government now maintains that the Secretary
reasonably discounted the Census Bureau’s recommendation because it
was based on an untested prediction about the accuracy of its
model. But this is not a case in which the Secretary was presented
with a policy choice between two reasonable but uncertain options.
For one thing, the record is much less uncertain than the
Government acknowledges. Although it is true that the Census Bureau
at one point told the Secretary that it could not “quantify the
relative magnitude of the errors across the alternatives at this
time,” App. 148, it unequivocally stated that asking the question
“ would result in poorer quality citizenship data ” than
omitting it, id. , at 159 (emphasis added). Thus, even if the
Bureau could not “quantify” the relative accuracy of the options,
it could and did conclude that one option was likely more accurate
than the other. Even in the face of some uncertainty, where all
available evidence indicates that one option is better than the
other, it is unreasonable to choose the worse option without
explanation.

															For another thing, to the extent the record
reflects some uncertainty regarding the accuracy of the Census
Bureau’s statistical model, that is because the model needed to be
“developed and tested” before it could be employed. Id. , at
146. But the Secretary made his decision before any such
development or testing could be completed. Having decided to make
an immediate decision rather than wait for testing, the Secretary
could not dismiss the Bureau’s prediction about the inadvisability
of that decision on the ground that the prediction reflected
likelihoods, probabilities, and risks rather than certainties.

															Finally, recall that the Census Act requires the
Secretary to use administrative records rather than direct
inquiries to “the maximum extent possible.” 13 U. S. C.
§6(c). That statutory requirement highlights what should be
obvious: Whether adding a citizenship question to the short form
would produce more accurate citizenship data is a relevant
factor—indeed, a critically important factor—that the Secretary was
required to consider. Here, the Secretary did not adequately
explain why he rejected the evidence that adding the question would
yield less accurate data. He did not even acknowledge that the
Census Act obliged him to use administrative records rather than
asking a question to the extent possible. And he did not explain
how obtaining citizenship data that is no better or worse than the
data otherwise available could justify jeopardizing the accuracy of
the census count.

															In these respects, the Secretary failed to
consider “important aspect[s] of the problem” and “offered an
explanation for [his] decision that runs counter to the evidence
before the agency.” State Farm , 463 U. S., at 43.

															C

															The Secretary’s failure to consider this
evidence—that adding the question would harm the census count in
the interest of obtaining less accurate citizenship data—provides a
sufficient basis for setting the decision aside. But there is more.
The reason that the Secretary provided for needing more accurate
citizenship information in the first place—to help the DOJ enforce
the Voting Rights Act—is unconvincing.

															The Secretary stated that adding the citizenship
question was “necessary to provide complete and accurate data in
response to the DOJ request.” App. to Pet. for Cert. 562a. The
DOJ’s request in turn asserted that the citizenship data currently
available from the ACS was not “ideal” for enforcing the Voting
Rights Act. Id. , at 567a. One of the DOJ’s principal
complaints was that ACS data is reported for groups of
census blocks rather than for each census block itself. The DOJ
letter stated that adding a citizenship question could provide it
with individual block-by-block data which, the DOJ maintained,
would allow it to better enforce the Voting Rights Act’s
protections for minority voters. Id. , at 568a.

															This rationale is difficult to accept. One
obvious problem is that the DOJ provided no basis to believe that
more precise data would in fact help with Voting Rights Act
enforcement. Congress enacted the Voting Rights Act in 1965—15
years after the census last asked every household about
citizenship. Actions to enforce the Act have therefore always used citizenship data derived from sampling. Yet I am
aware of no one—not in the Department of Commerce proceeding, in
the District Court, or in this Court—who has provided a single
example in which enforcement of the Act has suffered due to lack of
more precise citizenship data. Organizations with expertise in this
area tell us that asking the citizenship question will not help
enforce the Act. See, e.g. , Brief for NAACP Legal Defense
& Educational Fund, Inc., as Amicus Curiae 30−36.
Rather, the question will, by depressing the count of minority
groups, hurt those whom the Act seeks to help. See, e.g. ,
Brief for Leadership Conference on Civil and Human Rights
et al. as Amici Curiae 21−29.

															Another problem with the Secretary’s rationale
is that, even assuming the DOJ needed more detailed citizenship
data, there were better ways of obtaining the needed data. The
Census Bureau offered to provide the DOJ with data using
administrative records, which, as I have pointed out, are likely
just as accurate, if not more accurate, than responses to a
citizenship question. The Census Bureau offered to provide this
data at the census block level, which would resolve each of the
DOJ’s complaints about the existing ACS data. See Administrative
Record 3289. But the Secretary rejected this alternative without
explaining why it would not fully respond to the DOJ’s request.
That failure was particularly problematic given that the Census Act
requires the Secretary to use other methods of obtaining
demographic information if at all possible. See §§6(c), 195.

															Normally, the Secretary would be entitled to
place considerable weight upon the DOJ’s expertise in matters
involving the Voting Rights Act, but there are strong reasons for
discounting that expertise here. The administrative record shows
that DOJ’s request to add a citizenship question originated not
with the DOJ, but with the Secretary himself. See Administrative
Record 3710. The Voting Rights Act rationale was in fact first
proposed by Commerce Department officials. See ibid. DOJ
officials, for their part, were initially uninterested in obtaining
more detailed citizenship data, App. 414, and they agreed to
request the data only after the Secretary personally spoke to the
Attorney General about the matter, see Administrative Record 2651.
And when the acting director of the Census Bureau proposed
alternative means of obtaining better citizenship data, DOJ
officials declined to meet to discuss the proposal. See id. ,
at 3460.

															Taken as a whole, the evidence in the
administrative record indicates that the Voting Rights Act
rationale offered by the Secretary was not just unconvincing, but
pretextual. And, as the Court concludes, further evidence outside
the administrative record but present in the trial record supports
the finding of pretext. See Part V, ante. Among other
things, that evidence reveals that the DOJ official who wrote the
letter agreed that adding the question “is not necessary for DOJ’s
VRA enforcement efforts.” App. 1113. And that official further
acknowledged that he did not “know whether or not [citizenship]
data produced from responses to the citizenship question
. . . will, in fact, be more precise than the
[citizenship] data on which the DOJ is currently relying for
purposes of VRA enforcement.” Id. , at 1102.

															The Court explains, and I agree, that a court
normally should not “reject an agency’s stated reasons for acting
simply because the agency might also have had other unstated
reasons.” Ante , at 24. But in this case, “the evidence tells
a story that does not match the explanation the Secretary gave for
his decision.” Ante , at 27. This evidence strongly suggests
that the Secretary’s stated rationale was pretextual. I
consequently join Part V of the Court’s opinion (except insofar as
it concludes that the Secretary’s decision was reasonable apart
from the question of pretext). And I agree that the pretextual
nature of the Secretary’s decision provides a sufficient basis to
affirm the District Court’s decision to send the matter back to the
agency.

															*  *  *

															I agree with the Court that the APA gives
agencies broad leeway to carry out their legislatively delegated
duties. And I recognize that Congress has specifically delegated to
the Secretary of Commerce the authority to conduct a census of the
population “in such form and content as he may determine.” §141(a).
But although this delegation is broad, it is not without limits.
The APA supplies one such limit. In an effort to ensure rational
decisionmaking, the APA prohibits an agency from making decisions
that are “arbitrary, capricious, [or] an abuse of discretion.” 5
U. S. C. §706(2)(A).

															This provision, of course, does not insist that
decisionmakers think through every minor aspect of every problem
that they face. But here, the Secretary’s decision was a major one,
potentially affecting the proper workings of our democratic
government and the proper allocation of hundreds of billions of
dollars in federal funds. Cf. ante , at 10. Yet the decision
was ill considered in a number of critically important respects.
The Secretary did not give adequate consideration to issues that
should have been central to his judgment, such as the high
likelihood of an undercount, the low likelihood that a question
would yield more accurate citizenship data, and the apparent lack
of any need for more accurate citizenship data to begin with. The
Secretary’s failures in considering those critical issues make his
decision unreasonable. They are the kinds of failures for which, in
my view, the APA’s arbitrary and capricious provision was
written.

															As I have said, I agree with the Court’s
conclusion as to pretext and with the decision to send the matter
back to the agency. I do not agree, however, with several of the
Court’s conclusions concerning application of the arbitrary and
capricious standard. In my view, the Secretary’s decision—whether
pretextual or not—was arbitrary, capricious, and an abuse of his
lawfully delegated discretion. I consequently concur in the Court’s
judgment to the extent that it affirms the judgment of the District
Court. SUPREME COURT OF THE UNITED STATES

															_________________

															No. 18–966

															_________________

															DEPARTMENT OF COMMERCE, et al., PETITIONERS v. NEW YORK, et al.

															on writ of certiorari before judgment to the
united states court of appeals for the second circuit

															[June 27, 2019]

															Justice Alito, concurring in part and
dissenting in part.

															It is a sign of our time that the inclusion of a
question about citizenship on the census has become a subject of
bitter public controversy and has led to today’s regrettable
decision. While the decision to place such a question on the 2020
census questionnaire is attacked as racist, there is a broad
international consensus that inquiring about citizenship on a
census is not just appropriate but advisable. No one disputes that
it is important to know how many inhabitants of this country are
citizens.[ 1 ] And the most
direct way to gather this information is to ask for it in a census.
The United Nations recommends that a census inquire about
citizenship,[ 2 ] and many
countries do so.[ 3 ]

															Asking about citizenship on the census also has
a rich history in our country. Every census, from the very first
one in 1790 to the most recent in 2010, has sought not just a count
of the number of inhabitants but also varying amounts of additional
demographic information. In 1800, Thomas Jefferson, as president of
the American Philosophical Society, signed a letter to Congress
asking for the inclusion on the census of questions regarding
“ ‘the respective numbers of native citizens, citizens of
foreign birth, and of aliens’ ” “ ‘for the purpose
. . . of more exactly distinguishing the increase of
population by birth and immigration.’ ” C. Wright, History and
Growth of the United States Census (prepared for the Senate
Committee on the Census), S. Doc. No. 194, 56th Cong., 1st Sess.,
19 (1900). In 1820, John Quincy Adams, as Secretary of State, was
responsible for conducting the census, and consistent with the 1820
Census Act, he instructed the marshals who were charged with
gathering the information to ask about citizenship.[ 4 ] In 1830, when Martin Van Buren was
Secretary of State, a question about citizenship was again
included.[ 5 ] With the exception
of the census of 1840, at least some portion of the population was
asked a question about citizenship as part of the census through
2000, after which the question was moved to the American Community
Survey, which is sent to only a small fraction of the population.
All these census inquiries were made by the Executive pursuant to
congressional authorization. None were reviewed by the courts.

															Now, for the first time, this Court has seen fit
to claim a role with respect to the inclusion of a citizenship
question on the census, and in doing so, the Court has set a
dangerous precedent, both with regard to the census itself and with
regard to judicial review of all other executive agency actions.
For the reasons ably stated by Justice Thomas, see ante , p.
___ (opinion concurring in part and dissenting in part), today’s
decision is either an aberration or a license for widespread
judicial inquiry into the motivations of Executive Branch
officials. If this case is taken as a model, then any one of the
approximately 1,000 district court judges in this country, upon
receiving information that a controversial agency decision might
have been motivated by some unstated consideration, may order the
questioning of Cabinet officers and other high-ranking Executive
Branch officials, and the judge may then pass judgment on whether
the decision was pretextual. What Bismarck is reputed to have said
about laws and sausages comes to mind. And that goes for
decisionmaking by all three branches.

															To put the point bluntly, the Federal Judiciary
has no authority to stick its nose into the question whether it is
good policy to include a citizenship question on the census or
whether the reasons given by Secretary Ross for that decision were
his only reasons or his real reasons. Of course, we may determine
whether the decision is constitutional. But under the
considerations that typically guide this Court in the exercise of
its power of judicial review of agency action, we have no authority
to decide whether the Secretary’s decision was rendered in
compliance with the Administrative Procedure Act (APA).

															I

															The APA authorizes judicial review of “agency
action” taken in violation of law, 5 U. S. C.
§§706(2)(A)–(D), but §701(a)(2) of the APA bars judicial review of
agency actions that are “committed to agency discretion by law.”
Although we have characterized the scope of §701(a)(2) as
“ ‘narrow,’ ” Heckler v. Chaney , 470 U.S.
821 , 830 (1985), there are circumstances in which it applies.
And while our cases recognize a strong presumption in favor of
judicial review of agency action, see, e.g. , Weyerhaeuser
Co. v. United States Fish and Wildlife Serv. , 586
U. S. ___, ___ (2018) (slip op., at 11), this “is ‘just’ a
presumption,” and like all real presumptions, it may be (and has
been) rebutted, Lincoln v. Vigil , 508 U.S.
182 , 190 (1993).[ 6 ]

															In considering whether the general presumption
in favor of judicial review has been rebutted in specific cases, we
have identified factors that are relevant to the inquiry: whether
the text and structure of the relevant statutes leave a court with
any “ ‘meaningful standard against which to judge the agency’s
exercise of discretion,’ ” Webster v. Doe , 486
U.S. 592 , 600 (1988) (quoting Heckler , supra , at
830); whether the matter at hand has traditionally been viewed as
committed to agency discretion, see ICC v. Locomotive
Engineers , 482 U.S.
270 , 282 (1987); whether the challenged action manifests a
“general unsuitability” for judicial review because it involves a
“complicated balancing of a number of factors,” including judgments
regarding the allocation of agency resources or matters otherwise
committed to another branch, Heckler , supra , at
831–832; and whether judicial review would produce “disruptive
practical consequences,” Southern R. Co. v. Seaboard
Allied Milling Corp. , 442 U.S.
444 , 457 (1979) (applying this factor to the reviewability
inquiry under §701(a)(1)).

															Applying those factors, I conclude that the
decision of the Secretary of Commerce to add core demographic
questions to the decennial census questionnaire is committed to
agency discretion by law and therefore may not be challenged under
the APA.[ 7 ]

															II

															A

															I start with the question whether the relevant
statutory provisions provide any standard that courts can apply in
reviewing the Secretary’s decision to restore a citizenship
question to the census. The provision that directly addresses this
question is 13 U. S. C. §141(a), the statute that vests
the Secretary with authority to administer the decennial census.
This provision gives the Secretary unfettered discretion to include
on the census questions about basic demographic characteristics
like citizenship. It begins by providing that the Secretary

															“shall, in the year 1980 and every 10
years thereafter, take a decennial census of population . . . in such form and content as he may
determine , including the use of sampling procedures and special
surveys.” Ibid. (emphasis added).

															The two phrases I have highlighted—“census of
population” and “in such form and content as he may determine”—are
of immediate importance. A “census of popu- lation” is broader than
a mere head count. The term is defined as “a census of population
. . . and matters relating to population .” §141(g)
(emphasis added). Because this definition refers to both “a census
of population” and “matters relating to population,” the latter
concept must include more than a “census of population” in the
strict sense of a head count. And it seems obvious that what this
additional information must include is the sort of basic
demographic information that has long been sought in the census. So
the statute clearly authorizes the Secretary to gather such
information.

															The second phrase, “in such form and content as
he may determine,” specifies how this information is to be
gathered, namely, by a method having the “form and content” that
the Secretary “may determine.” In other words, this is left purely
to the Secretary’s discretion. A clearer and less restricted
conferral of discretion is hard to imagine.

															It is instructive to compare this delegation of
authority to the statutory language at issue in one of our most
well-known §701(a)(2) cases, Webster v. Doe , 486 U.S.
592 . There, the relevant statute allowed termination of a
Central Intelligence Agency employee whenever the Director “shall
deem such termination necessary or advisable in the interests of
the United States.” Id. , at 600 (internal quotation marks
omitted and emphasis deleted). Reasoning that the statute’s “shall deem ” standard “fairly exudes deference to the Director,”
the Court concluded that the text of the statute “appear[ed]
. . . to foreclose the application of any meaningful
judicial standard of review.” Ibid. The §141(a) language discussed above is even
more sweeping than that of the statute in Webster. Unlike
the Census Act, the statute in Webster placed a condition on
the Director’s action—in particular, the requirement that he
terminate an employee only after concluding that doing so would
further the “interests of the United States.” No such condition
applies to the Secretary’s determination about the form and content
of the decennial census, a fact that distinguishes the statute at
issue here from others this Court has found to fall outside
§701(a)(2) and thus within courts’ power to review. See, e.g.,
Weyerhaeuser Co. , 586 U. S., at ___ (slip op., at 10)
(statute conditioning agency power to exclude land from critical
habitat designation on agency’s consideration of “ ‘economic
impact’ ” of designation and “ ‘determin[ation] that the
benefits of such exclusion outweigh the benefits of specifying such
area as part of the critical habitat’ ”).

															B

															Those arguing in favor of judicial review
contend that the §141(a) language that I have discussed so far is
limited by language that follows immediately after. That part of
§141(a) states:

															“In connection with any such census
[ i.e. , the decennial “census of population”], the Secretary
is authorized to obtain such other census information as necessary .” (Emphasis added.)

															This means, it is argued, that information about
citizenship may be obtained by means of the census only if that is
“necessary.” But this argument is clearly wrong. The information
that must be “necessary” (whatever that means in this context) is
“ other census information.” That refers to information other
than that obtained in the “census of population,” and as explained,
the term “census of population” includes not just a head count but
other “matters relating to population,” a category that encompasses
basic demographic information such as citizenship. Accordingly,
this argument is definitively refuted by the text of §141. And
although it is not necessary to look beyond that text, it is worth
noting that this argument, if accepted, would require that the term
“necessary” be given a less than strictly literal meaning;
otherwise, it would run contrary to the broad delegation effected
by the first portion of §141(a) by making it all but impossible for
the Secretary to include on the census anything other than
questions relating to the number of persons living at a particular
address. That would be so because it will often not be “necessary”
to obtain this information via the census rather than by some other
means.

															C

															Another argument in favor of review relies on
13 U. S. C. §195, which states:

															“Except for the determination of
population for purposes of apportionment of Representatives in
Congress among the several States, the Secretary shall, if he
considers it feasible, authorize the use of the statistical method
known as ‘sampling’ in carrying out the provisions of this
title.”

															Justice Breyer, for example, interprets this
provision to mean that “the Secretary must, if feasible, obtain
demographic information through a survey sent to a sample of
households, rather than through the short-form census questionnaire
to which every household must respond.” Ante , at 3
(opinion concurring in part and dissenting in part). Under that
reading of §195, it is asserted, the provision sets forth a
judicially reviewable limit on the Secretary’s authority to obtain
information through direct inquiries.

															This argument fails to take into account that
the current version of §195 was enacted as part of the same Act of
Congress that included the present version of §141[ 8 ] and that the two provisions are both parts
of a unified scheme regarding the use of sampling. Section 141, a
provision concerned exclusively with the census, addresses the use
of sampling in that particular context. I previously quoted the
relevant language, but I repeat it now so that it is clearly in
mind. Section 141(a) provides that the Secretary

															“shall, in the year 1980 and every 10
years thereafter, take a decennial census of population
. . . in such form and content as he may determine,
including the use of sampling procedures and special surveys .”
(Emphasis added.)

															What this means is that the Secretary, in
conducting the “census of population,” has discretion to choose the
form and content of the vehicles used in that project, and among
the methods that he may employ, if he sees fit, are sampling and
special surveys.

															Section 195 is not a census-specific provision,
but it does have one (important) thing to say specifically about
the census: It prohibits the use of sampling “for the determination
of population for purposes of apportionment of Representatives in
Congress.” In this one way, it qualifies the Secretary’s discretion
regarding the “form and content” of the vehicles used in conducting
the “census of population.” And that is what we meant in Department of Commerce v. United States House of
Representatives , 525 U.S.
316 , 338 (1999), when we said that §141(a)’s “broad grant of
authority . . . is informed . . . by the
narrower and more specific §195.” Otherwise, the text of §195 does
not deal specifically with the census. It addresses all the many
information-gathering activities conducted by the Commerce
Department, and as to these, it says that the Secretary shall use
sampling if he deems it “feasible.”

															If §195 were read to mean that no information
other than a head count can be sought by means of a census
questionnaire unless it is not “feasible” to get that information
by sampling, then there would be little if anything left of the
broad discretion “to use sampling techniques” conferred on the
Secretary by §141(a). “Feasible” means “capable of being done,
executed, or effected,” Webster’s Third New International
Dictionary 831 (1961), and it is not clear that the gathering of any core demographic information is not “capable of being
done” by sampling. So if that were what §195 means, then Congress,
in the same Act, would have given the Secretary discretion to use
sampling in the census “as he may determine” but also compelled him
to use sampling in almost all instances. That is no way to read the
provisions of a single Act. A law’s provisions should be read to
work together. See A. Scalia & B. Garner, Reading Law 180
(2012) (“The provisions of a text should be interpreted in a way
that renders them compatible, not contradictory”). See also, e.g. , Parker Drilling Management Services, Ltd. v. Newton , 587 U. S. ___, ___–___ (2019) (slip op., at
5–6); Star Athletica, L. L. C. v. Varsity
Brands, Inc. , 580 U. S. ___, ___–___ (2017) (slip op., at
6–7); Kawasaki Kisen Kaisha Ltd. v. Regal-Beloit
Corp. , 561 U.S.
89 , 108 (2010). And if there is tension between a specific
provision, like §141’s instruction regarding the use of sampling in
the decennial census, and a general one, like §195’s directive
regarding the use of sampling in all data-collection activities,
the specific provision must take precedence. Cf. NLRB v. SW General, Inc. , 580 U. S. ___, ___ (2017) (slip op.,
at 14).

															When §§141 and 195 are read in this way, it is
easy to see how they fit together. In using the census to gather
information “relating to population” for any use other than the
actual enumeration, the Secretary may use sampling “as he may
determine.” In conducting all the Department’s efforts to collect
data by other means, he may authorize the use of sampling if he
thinks that is “feasible.” The upshot for present purposes is that
§195 does not require the “counterintuitive resul[t]” of barring
the Secretary from including on the census questionnaire the kinds
of basic demographic questions that have been asked as part of
every census in U. S. history. RJR Nabisco, Inc. v. European Community , 579 U. S. ___, ___ (2016) (slip
op., at 15).

															D

															One additional provision, 13
U. S. C. §6(c),[ 9 ]
requires close consideration. This provision, which was enacted in
1976 in the same Act as §§141(a) and 195, has three subsections.
Subsection (a) provides that the Secretary may call on other
components of the Federal Government to obtain information that is
“pertinent to” the Department’s work. Subsection (b) authorizes the
Secretary to “acquire, by purchase or otherwise” from state and
local governments and private sources “such copies of records,
reports, and other material as may be required for the efficient
and economical conduct of the censuses and surveys provided for in
this title.” Finally, subsection (c) provides:

															“To the maximum extent possible and
consistent with the kind, timeliness, quality and scope of the
statistics required, the Secretary shall acquire and use
information available from any source referred to in subsection (a)
or (b) of this section instead of conducting direct inquiries.”

															The District Court interpreted subsection (c) to
mean that the Secretary must turn to another federal agency or
outside source for demographic information (rather than seeking the
information on the census) unless doing so would not be “possible”
or “consistent with the kind, timeliness, quality and scope of the
statistics required.” This argument fails for reasons similar to
those that sank the §195 argument just discussed. Section 6(c) is
not a census- specific provision but instead applies generally to
all the Commerce Department’s information-gathering activities. If
it is read to apply to the “census of population,” it cannot be
reconciled with §141(a), which, as noted, broadly authorizes the
Secretary to use that vehicle for obtaining information “relating
to population,” i.e. , core demographic information. If §6(c)
applied to the gathering of such information, it would make it hard
to justify the inclusion of any demographic questions on the
census, even though this has been done since 1790. (Is it not
possible to get information about age and sex, for example, from
any outside source (or combination of sources), even if the
Department offers to acquire it from a private source by purchase?)
Reading §6(c) to mean what the District Court thought would turn it
into the proverbial elephant stuffed into a mouse hole. Section
6(c), however, is a decidedly mouse-like provision. It was enacted
with no fanfare and no real explanation,[ 10 ] and remained in the shadows, vir- tually unused
and unnoticed, for more than 40 years.

															E

															Respondents and the Court cite two other
provisions in support of reviewability, but neither has anything to
do with the issue of putting a citizenship question on the census.
In determining whether statutory provisions include standards that
could provide a basis for judicial review, it is necessary to focus
on the precise claims at issue, see, e.g., Webster , 486
U. S., at 601–602 (distinguishing between statutory and
constitutional claims); Locomotive Engineers , 482
U. S., at 277–279 (parsing claims under different prongs of
reopener statute); Heckler , 470 U. S., at 836
(rejecting as “irrelevant” to the agency decision at issue two
statutory provisions that were argued to provide “ ‘law to
apply’ ”). And when viewed in this way, the remaining
statutory provisions cited in support of reviewability are of no
value.

															Respondents point to §141(b), which requires the
Secretary to complete the tabulation of total population by States
“within 9 months after the census date” and then to report the
results to the President. That provision sets out an easily
administered deadline, and it has nothing to do with the content of
the census questionnaire.

															Respondents also claim that §141(f) is relevant
to the question of judicial review, but that provision concerns congressional review. It directs the Secretary to report to
Congress, at specified times, the subjects and questions that he
intends to include on the census. According to respondents, the
Secretary’s compliance with those requirements is judicially
reviewable, and that, they contend, takes the Secretary’s decision
to include a citizenship question out from under §701(a)(2).

															Respondents fundamentally misunderstand the
signifi- cance of congressional reporting requirements in
evaluating whether a particular agency action is subject to
judicial review. Congressional reporting requirements are “legion
in federal law,” Natural Resources Defense Council, Inc. v. Hodel , 865 F.2d 288, 317 (CADC 1988), and their purpose is
to permit Congress to monitor and, if it sees fit, to correct
Executive Branch actions to which it objects. When a congressional
reporting requirement “[l]ack[s] a provision for judicial review,”
compliance “by its nature seems singularly committed to congressional discretion in measuring the fidelity of the
Executive Branch actor to legislatively mandated requirements.” Id. , at 318. In other words, it is Congress, not the
Judiciary, that is best situated to determine whether an agency’s
responses to Congress are sufficient and, if not, to “take what it
deems to be the appropriate action.” Id. , at 319.

															In that respect, §141(f) actually cuts against
judicial review. The Constitution gives Congress the authority to
“direct” the “Manner” in which the census is conducted, and by
imposing the §141(f) reporting requirements, Congress retained some
of that supervisory authority. It did not transfer it to the
courts.[ 11 ]

															Respondents protest that congressional review
may not be enough to guard against a Secretary’s abuses, especially
when the party in control of Congress stands to benefit. But that
complaint simply expresses disagreement with the Framers’ choice to
vest power over the census in a political body, cf. Baldrige v. Shapiro , 455 U.S.
345 , 347–348 (1982) (“Under [the] Constitution, responsibility
for conducting the decennial census rests with Congress”), and the
manner in which Congress has chosen to exercise that power, see Wisconsin v. City of New York , 517 U.S.
1 , 19 (1996) (Congress has delegated its “virtually unlimited
discretion” in conducting the census to the Secretary). In any
event, the ability to press constitutional challenges to the
Secretary’s decisions, see n. 7, supra, answers many of
the examples in respondents’ parade of horribles.

															In short, the relevant text of §141(a) “fairly
exudes deference” to the Secretary. Webster , 486 U. S.,
at 600. And no other provision of law cited by respondents or my
colleagues provides any “meaningful judicial standard” for
reviewing the Secretary’s selection of demographic questions for
inclusion on the census. Ibid. III

															In addition to requiring an examination of the
text and structure of the relevant statutes, our APA §701(a)(2)
cases look to whether the agency action in question is a type that
has traditionally been viewed as committed to agency discretion or
whether it is instead one that “federal courts regularly review.” Weyerhaeuser Co. , 586 U. S., at ___ (slip op., at 12).
In cases where the Court has found that agency action is committed
to agency discretion by law, an important factor has been the
absence of an established record of judicial review prior to the
adoption of the APA. See Heckler , 470 U. S., at 832–833
(agency nonenforcement); Locomotive Engineers , 482
U. S., at 282 (agency decision not to reopen final decision
based on material error); Lincoln , 508 U. S., at 192
(agency use of lump-sum appropriations).

															Here, there is no relevant record of judicial
review. We are confronted with a practice that reaches back two
centuries. The very first census went beyond a mere head count and
gathered additional demographic information, and during virtually
the entire period prior to the enactment of the APA, a citizenship
question was asked of everyone. Notably absent from that long
record is any practice of judicial review of the content of the
census. Indeed, this Court has never before encountered a direct
challenge to a census question. App. to Pet. for Cert. 416a. And
litigation in the lower courts about the census is sparse and
generally of relatively recent vintage.

															Not only is this sort of history significant in
all §701(a)(2) cases, see Locomotive Engineers , supra , at 282, but we have previously stressed the
particular “importance of historical practice” when it comes to
evaluating the Secretary’s authority over the census. Wisconsin , supra , at 21; see also ante, at 13
(opinion of the Court). Moreover, where the relevant question is
not whether review may be had at all, but rather the branch with
the authority to exercise review, the absence of any substantial
record of judicial review is especially revealing. See, e.g.,
NLRB v. Noel Canning , 573 U.S. 513, 525 (2014) (it is
“neither new nor controversial” that “longstanding practice of the
government can inform our determination of what the law is”
(internal quotation marks and citation omitted)); United
States v. Midwest Oil Co. , 236 U.S.
459 , 473 (1915) (“in determining . . . the existence
of a power, weight [is] given to . . . usage”). Thus, the
absence of any real tradition of judicial review of decisions
regarding the content of the census counsels against review in this
case.

															In an attempt to show that there is no relevant
“tradition of nonreviewability,” Locomotive Engineers , supra , at 282, respondents contend that this Court has
recently engaged in review of the “conduct of the census,” Brief
for Government Respondents 26–27. But in none of the cases they
cite did the Court address an APA challenge to the content of
census questions.[ 12 ] Some
involved constitu- tional claims about enumeration and
apportionment. See Franklin v. Massachusetts , 505 U.S.
788 , 790, 801 (1992) (constitutional challenge to “method used
for counting federal employees serving overseas” as part of
“reapportionment determination”); Wisconsin , 517 U. S.,
at 20 (constitutional challenge to Secretary’s decision not to
adjust count). Others concerned enforcement of statutes with
specific directives. See Department of Commerce , 525 U. S.,
at 343 (holding that §195 bars use of “sampling” to reach actual
enumeration for apportionment); Utah v. Evans , 536 U.S.
452 , 464–465 (2002) (considering whether statistical method
violated §195’s bar on use of “sampling” in apportionment
enumeration). According to respondents, these cases mean that all the Secretary’s census-related decisions are suitable
for judicial review and thus fall outside of §701(a)(2), and the
Court apparently agrees, rejecting the Government’s §701(a)(2)
argument in part because “[w]e and other courts have entertained
both constitutional and statutory challenges to census-related
decisionmaking.” Ante , at 15.

															This argument misses the point of §701(a)(2).
The question under that provision is whether the challenged
action “is committed to agency discretion by law,” not whether
a different action by the same agency is review- able under the
APA, much less whether an action taken by the same agency can be
challenged under the Constitution. Take the example of Heckler v. Chaney , supra , where the Court
considered whether a particular Food and Drug Administration (FDA)
decision was reviewable under the APA. Many FDA actions are subject
to APA review, see, e.g., Weinberger v. Hynson, Westcott
& Dunning, Inc. , 412 U.S.
609 , 627 (1973), but that did not prevent the Heckler Court from holding that the particular FDA decision at issue there
fell within §701(a)(2). See also, e.g. , Heckler , supra, at 836–837.

															Respondents and some of their amici contend that the Secretary’s decision is at least amenable to
judicial review for consistency with the APA’s reasoned-explanation
requirement. See Motor Vehicle Mfrs. Assn. of United States,
Inc. v. State Farm Mut. Automobile Ins. Co. , 463 U.S.
29 , 43 (1983) (describing requirement). Thus, the argument
goes, even if no statute sets out a standard that can be used in
reviewing the particular agency action in question, a court may
review an agency’s explanation of the reasons for its action and
set it aside if the court finds those reasons to be arbitrary or
irrational.

															This argument would obliterate §701(a)(2). Even
if a statute expressly gave an agency absolute, unrestricted,
unfettered, unlimited, and unqualified discretion with respect to a
particular decision, a court could still review the agency’s
explanation of the reasons for its decision. That is not what
§701(a)(2) means. As we put it previously in answering a similar
argument against application of §701(a)(2), it is “fals[e]” to
suggest “that if the agency gives a ‘reviewable’ reason for
otherwise unreviewable action, the action becomes reviewable.” Locomotive Engineers , 482 U. S., at 283. That is
because when an action “is committed to agency discretion by law,”
the Judiciary has no role to play, even when an agency sets forth
“an eminently ‘reviewable’ proposition.” Id., at
282–283.

															IV

															In sum, neither respondents nor my colleagues
have been able to identify any relevant, judicially manageable
limits on the Secretary’s decision to put a core demographic
question back on the census. And without an “adequate standard of
review for such agency action,” id. , at 282, courts
reviewing decisions about the “form and content” of the census
would inevitably be drawn into second-guessing the Secretary’s
assessment of complicated policy tradeoffs,[ 13 ] another indicator of “general unsuitability”
for judicial review. Heckler , supra , at 831.

															Indeed, if this litigation is any indication,
widespread judicial review of the Secretary’s conduct of the census
will usher in an era of “disruptive practical consequences,” and
this too weighs against review. Seaboard Allied Milling
Corp. , 442 U. S., at 457. Cf. Tucker v. United
States Dept. of Commerce , 958 F.2d 1411, 1418 (CA7 1992)
(expressing doubt about “both the provenance and the
practicability” of allowing judicial review of census-related
decisions).

															Respondents protest that the importance of the
census provides a compelling reason to allow APA review. See also ante, at 22–23 (opinion of Breyer, J.). But this argument
overlooks the fact that the Secretary is account- able in other
ways for census-related decisionmaking.[ 14 ] If the Secretary violates the Constitution or any
applicable statutory provision related to the census, his action is
reviewable. The Secretary is also accountable to Congress with
respect to the administration of the census since he has that power
only because Congress has found it appropriate to entrust it to
him. And the Secretary is always answerable to the President, who
is, in turn, accountable to the people.

															*  *  *

															Throughout our Nation’s history, the Executive
Branch has decided without judicial supervision or interference
whether and, if so, in what form the decennial census should
inquire about the citizenship of the inhabitants of this country.
Whether to put a citizenship question on the 2020 census
questionnaire is a question that is committed by law to the
discretion of the Secretary of Commerce and is therefore exempt
from APA review. The District Court had the authority to decide
respondents’ constitutional claims, but the remainder of their
complaint should have been dismissed.

															I join Parts I, II, III, IV–B, and IV–C[ 15 ] of the opinion of the Court. I
do not join the remainder, and insofar as the Court holds that the
Secretary’s decision is reviewable under the APA, I respectfully
dissent. Notes 1 As a 2016 Census Bureau
guidance document explained, obtaining citizenship statistics is
“essential for agencies and policy makers setting and evaluating
immigration policies and laws, understanding how different
immigrant groups are assimilated, and monitoring against
discrimination.” Dept. of Commerce, Census Bureau, American
Community Survey, Why We Ask: Place of Birth, Citizenship and Year
of Entry,
www2.census. gov /programs - surveys / acs / about / qbyqfact / 2016 /Citizenship.pdf
(all Internet materials as last visited June 25,
2019). 2 United Nations, Dept. of
Economic and Social Affairs Statistics Div., Principles and
Recommendations for Population and Housing Censuses 163, 191 (rev.
3, 2017). 3 See, e.g. , Brief
for Petitioners 29 (“ ‘[O]ther major democracies inquire about
citizenship on their census, including Australia, Canada, France,
Germany, Indonesia, Ireland, Mexico, Spain, and the United Kingdom,
to name a few’ ” (quoting App. to Pet. for Cert.
561a)). 4 See Act of Mar. 14, 1820,
ch. 24, 3Stat. 550; Wright, History and Growth of the United States
Census, S. Doc. No. 194, 56th Cong., 1st Sess.,
133–137. 5 See Dept. of Commerce,
Census Bureau, History: 1830 Census Questionnaire,
https: / /www . census . gov /history /www /through _ the _ decades /questionnaires/1830_2.html. 6 Because the §701(a)(2)
analysis dictates whether APA review may be had, Justice
Breyer’s assertion that the APA “supplies [a] limit” on the
Secretary’s otherwise “broad” delegation, ante , at 22
(opinion concurring in part and dissenting in part), mistakenly
assumes the answer to the reviewability question. Cf. Heckler v. Chaney , 470 U.S.
821 , 828 (1985) (“[B]efore any review at all may be had, a
party must first clear the hurdle of §701(a)”). 7 The Government concedes
that courts may review constitutional challenges to the Secretary’s
actions. Cf. Webster v. Doe , 486
U.S. 592 , 603 (1988). For the reasons given in the Court’s
opinion, see ante , at 11–13, I agree that the only remaining
constitutional claim at issue—respondents’ Enumeration Clause
claim—lacks merit and thus does not constitute a basis for
enjoining the addition of the citizenship question. 8 See 90Stat.
2459. 9 Section 6 states: “(a)
The Secretary, whenever he considers it advisable, may call
upon any other department, agency, or establishment of the Federal
Government, or of the government of the District of Columbia, for
information pertinent to the work provided for in this title. “(b)
The Secretary may acquire, by purchase or otherwise, from
States, counties, cities, or other units of government, or their
instrumentalities, or from private persons and agencies, such
copies of records, reports, and other material as may be required
for the efficient and economical conduct of the censuses and
surveys provided for in this title. “(c) To the maximum extent
possible and consistent with the kind, timeliness, quality and
scope of the statistics required, the Secretary shall acquire
and use information available from any source referred to in
subsection (a) or (b) of this section instead of conducting direct
inquiries.” 10 The
most respondents can muster are snippets from the legislative
history of the 1976 Census Act indicating that §6(c) was enacted to
decrease the Secretary’s use of “direct inquiries” in the interest
of “reducing respondent burden.” H. R. Rep. No. 94–1719, p. 10
(1976). Even accepting that premise, it simply raises the same
question just discussed—namely, whether Congress’s desire to reduce
respondent burden, as reflected by §6(c), yields to the Secretary’s
broad authorization in §141(a) to “determine” the “form and
content” of any direct inquiries on the census. Cf. id., at
11 (characterizing §141 as a “provisio[n] directly related to
decennial . . . census”). 11 It is
notable that Congress, pursuant to its supervisory authority, has
in some cases limited the particular demographic characteristics
about which the Secretary may require information through census
questionnaires. In §221(c), for example, Congress has dictated that
“no person shall be compelled to disclose information relative to
his religious beliefs or to membership in a religious body.”
Similarly, in a series of appropriation Acts, Congress has
specified that “none of the funds provided in this or any other Act
for any fiscal year may be used for the collection of census data
on race identification that does not include ‘some other race’ as a
category.” 123Stat. 3115, note following 13 U. S. C. §5.
Those examples highlight that when Congress wishes to limit the
Secretary’s authority to require responses to particular
demographic questions, it “knows precisely how to do so.” Limelight Networks, Inc. v. Akamai Technologies,
Inc. , 572 U.S. 915, 923 (2014). 12 The
same can be said for the lower court cases on which respondents
rely. See, e.g., Brief for Government Respondents 26, and n.
6 (collecting cases, none of which “involved the census
questionnaire” or the Secretary’s selection of
questions). 13 In
determining how the census is to be conducted, the Secretary must
make decisions about a bevy of matters, such as the best way to
count particular persons or categories of persons with an adequate
degree of accuracy ( e.g. , by face-to-face interviews,
telephone calls, questionnaires to be mailed back, contacts with
neighbors, or use of existing records); the use of followup
procedures and other quality control measures; which persons should
be included in which households; and issues concerning where a
person should be enumerated. These and countless other factors may
affect whether an individual receives or responds to the census
questionnaire. 14 Since
the time Secretary Ross publicly announced his intent to add the
citizenship question, “Congress has questioned the Secretary about
his decision in public hearings on several occasions.” Brief for
Petitioners 50 (collecting examples). 15 Although I would hold that the
Secretary’s decision is not review-able under the APA, in the
alternative I would conclude that the decision survives review
under the applicable standards. I join Parts IV–B and IV–C on that
understanding.