the disruption and delay that an adjustment would cause, particularly in those states where adjustment would change their allotted number of seats in the House of Representatives.
It should be remembered that Congress decreed in 1912 there be only 435 seats in the House of Representatives. We are, therefore, dealing with a zero-sum game; when one state gains a seat, another must lose one. If the adjustment were made, California and Arizona, for example, would each gain one seat in the House, while Pennsylvania and Wisconsin would each lose one. Id. at 2-72. The Secretary envisioned massive litigation over such a decision.
Ultimately, the Secretary concluded that Guideline Seven favored adherence to the census counts. He rejected the argument that non-adjustment is "inherently disruptive," as based on the question-begging premise that the adjusted counts are more accurate. He also concluded that, even if it were true that adjustment would result in a fairer distribution of funds, this consideration would pale in comparison to the disruption of political representation that would ensue from a decision to adjust, because "adjustment would not result in significant shifts in those funds." Id. at 2-75.
Plaintiffs assail the Secretary's Guideline Seven conclusion on two distinct grounds. First, they suggest that it is disingenuous for the Secretary to rely on the fact that the unadjusted counts were already being used for reapportionment and redistricting purposes, when the Stipulation required that any release of the unadjusted data before the Secretary's decision be accompanied by a notice advising recipients that they used the data at their own risk. None of this however, detracts from the fact that Guideline Seven explicitly required the Secretary to consider such disruption in deciding whether or not to adjust. Nor does it contradict the simple logic of the Secretary's argument that a decision in favor of adjustment on July 15, 1991, would have disrupted the reapportionment and redistricting that was then ongoing.
Plaintiffs also observe that the Secretary's conclusion that adjustment would not result in significant shifts in federal funds contradicts an earlier sentence in the Decision that city and state population "shares are very important because they determine . . . how large a 'slice of the pie' of federal funds go to each city and state." Decision at 1-3-1-4. Plaintiffs are right. This, however, does not render the Secretary's decision invalid under Guideline Seven, because it involves a matter -- the allocation of federal funds -- only tangentially related to Guideline Seven, the basic thrust of which is the effect of a decision to adjust "on the orderly transfer of political representation." Accordingly, while there is an obvious inconsistency in the discussion accompanying the result, the plaintiffs have failed to show that the Secretary's conclusion under Guideline Seven was arbitrary or capricious.
Guideline Eight requires the Secretary to articulate the factors relied upon in reaching his decision, and also requires that "the technical documentation lying behind [his] decision shall be in keeping with professional standards of the statistical community." City of New York II, 739 F. Supp. at 769. Because the plaintiffs do not specifically attack the Secretary's decision under this guideline, and because the Secretary concluded that application of this guideline neither favored nor militated against adjustment, I find that the Secretary's Decision complied with Guideline Eight.
* * *
Having thus parsed the guidelines, the Court concludes that the Secretary's conclusions under each guideline and his ultimate decision against adjustment cannot be characterized as arbitrary or capricious. The breadth of the guidelines left the Secretary enormous discretion. Plaintiffs have made a powerful case that discretion would have been more wisely employed in favor of adjustment. Indeed, were this Court called upon to decide this issue de novo, I would probably have ordered the adjustment.
However, it is not within my province to make such determinations. The question is whether the Secretary's decision not to adjust is so beyond the pale of reason as to be arbitrary or capricious. That far I cannot go.
One of the central tenets of our founding fathers was that the role of the judiciary should be carefully delineated, especially when the controversy related to the management of the government. As Hamilton wrote:
The administration of government, in its largest sense, comprehends all the operations of the body politic, whether legislative, executive, or judiciary; but in its most usual and perhaps in its most precise signification, it is limited to executive details, and falls peculiarly within the province of the executive department.
The Federalist No.72 at 450 (Henry Cabot Lodge, ed., 1888)
The writings of Montesquieu and Locke bristle with the notion of separation of powers. But nowhere is it articulated more succinctly than in the Massachusetts Constitution:
In the government of this commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them: the executive shall never exercise the legislative and judicial powers, or either of them: the judicial shall never exercise the legislative and executive powers, or either of them: to the end it may be a government of laws and not of men.