Franklin v. Massachusetts, 505 U.S. 788, 31 (1992)

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818

FRANKLIN v. MASSACHUSETTS

Opinion of Stevens, J.

is difficult to imagine two statutory schemes more dissimilar than the National Security Act and the Census Act. Though they both relate to the gathering of information, the similarity ends there. Doe raises the possibility that, except for constitutional claims, the Director of Central Intelligence may enjoy unreviewable discretion to discharge employees. This conclusion accords with the principle of judicial deference that pervades the area of national security. See, e. g., Department of Navy v. Egan, 484 U. S. 518, 530 (1988); CIA v. Sims, 471 U. S. 159, 180-181 (1985). While the operations of a secret intelligence agency may provide an exception to the norm of reviewability,17 the taking of the census does not. The open nature of the census enterprise and the public dissemination of the information collected are closely connected with our commitment to a democratic form of government.18

The reviewability of decisions relating to the conduct of the census bolsters public confidence in the integrity of the process and helps strengthen this mainstay of our democracy.

More generally, the Court has limited the exception to judicial review provided by 5 U. S. C. § 701(a)(2) to cases involving national security, such as Webster v. Doe and Department of Navy v. Egan, or those seeking review of refusal to pursue enforcement actions, see Heckler v. Chaney, 470 U. S.

17 Indeed, it was asserted in Webster v. Doe, 486 U. S. 592 (1988), that the statute should be construed to preclude review even of constitutional claims. See id., at 605-606 (O'Connor, J., concurring in part and dissenting in part); id., at 621 (Scalia, J., dissenting) (describing Court's refusal to preclude constitutional review as creating "the world's only secret intelligence agency that must litigate the dismissal of its agents").

18 See 3 Encyclopedia of the Social Sciences 296 (reprinted in Subcommittee on Energy, Nuclear Proliferation and Federal Services of the Senate Committee on Governmental Affairs, The Decennial Census: An Analysis and Review, 96th Cong., 2d Sess., 461 (Comm. Print 1980)). The tradition of publicity, of course, relates to the tabulated information. The confidentiality of individual responses has long been assured by statute. See 13 U. S. C. §§ 8(b), 9(a); see also Baldrige v. Shapiro, 455 U. S. 345, 356-358 (1982).

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