When the week started, it appeared as if the issues surrounding the inclusion of a question regarding citizenship on the 2020 Census was effectively resolved. Last week, of course, the Supreme Court had upheld the injunctions that had been issued barring the inclusion of the question, but left open the possibility that the Trump Administration could still get the question included if it came up with a credible explanation for inclusion of the question beyond those that had been raised, and dismissed, at the District Court level.
Rather than continuing to fight for the question, though, it appeared at first as if the Administration had conceded that the question would not be included on the form. This was consistent with representations that lawyers for the Justice Department had made to the Supreme Court and the lower courts that the government needed a legal answer regarding the question before June 30th since that was the deadline to begin printing the forms. Thus, it was no surprise when lawyers for the Justice Department and the Commerce Department informed District Courts in Maryland and New York City that the government was going forward with printing the Census without the citizenship question.
Less than a day later, though, the government appeared to reverse course in the wake of tweets and comments from the President saying that the government would press on with seeking to get the question on the Census notwithstanding the apparent lack of time. As a result of this, a Federal District Court Judge in Maryland ordered lawyers for the government to inform him by yesterday afternoon what the government’s intentions were with regard to the case. It was in the context of that order that the Trump Administration informed Federal Judges presiding over litigation related to the inclusion of a citizenship question on 2020 Census that it intends to move forward with an effort to find an argument to justify including the question:
WASHINGTON — Justice Department lawyers told a federal judge on Friday that they would press ahead in their efforts to add a citizenship question to the 2020 census, but indicated they did not know yet what kind of rationale they would put forward.
Just hours before, President Trump told reporters on the South Lawn of the White House that he was considering four or five options, including an executive order, to restore the question.
“We’ll see what happens,” Mr. Trump said Friday. “We could also add an addition on. So we could start the printing now and maybe do an addendum after we get a positive decision. So we’re working on a lot of things including an executive order.”
The maneuvering capped a chaotic week in which administration officials first promised to abide by a Supreme Court order that effectively blocked the question from next year’s head count, then reversed themselves after Mr. Trump denounced their statements on Twitter as “fake” and pledged to restore the question to census forms.
More important, census totals are used to divvy up congressional seats among the 50 states, and as the base for drawing thousands of state and local political boundaries. In the wake of a second Supreme Court decision last week that gave a green light to even the most extreme partisan gerrymandering, the question of how the census counts heads — and whose heads get counted — has become even more crucial.
Critics of the citizenship question say it would lead to an undercount of immigrants, most of whom live in cities that predominantly lean Democratic. An undercount would diminish Democratic representation and benefit Republicans. More recently, plaintiffs in lawsuits have argued that the administration wants to count who is and isn’t a citizen so that states can exclude noncitizens entirely from the population bases used for redistricting to Republican benefit.
The President, meanwhile, continues to push forward advocating the idea to the point where it’s clear that the Justice Department lawyers, while they seem to accept the fact that there are very few viable legal options to get the question on the Census at this point, are nonetheless pushing forward because that’s what the President wants:
Mr. Trump hinted Friday at a similar point of view. Asked the reason for the citizenship question, he did not bring up enforcement of the Voting Rights Act, but instead said there were “many reasons.”
“No. 1, you need it for Congress — you need it for Congress for districting,” he said. “You need it for appropriations — where are the funds going? How many people are there? Are they citizens? Are they not citizens? You need it for many reasons.”
Mr. Trump said that he had spoken to Attorney General William P. Barr about his options. “We have a number of avenues, we could use” one or all of them,” Mr. Trump said.
Mr. Trump did not say what his options were. But people familiar with the discussions said that among the options being considered was using federal records other than the census questionnaires sent to every household to try to glean information about undocumented immigrants. Census Bureau officials have said that method would produce data on citizenship better and more cheaply than a citizenship question, and Commerce Secretary Wilbur Ross, who oversees the Census Bureau, ordered that data collected when he approved the citizenship question in March 2018.
Another possible option is an executive order, but it was not clear what form it would take or what it would accomplish in light of last month’s Supreme Court decision rejecting the justification Mr. Ross had given for adding the citizenship question.
But the Constitution assigns the responsibility for overseeing a decennial census to Congress, not the president. And Congress has limited executive authority over the census, as the Supreme Court recognized.
“The taking of the census is not one of those areas traditionally committed to agency discretion,” Chief Justice Roberts wrote in the opinion on the citizenship question, meaning that it cannot be accomplished by unilateral executive action.
An executive order from the president could be an attempt to speed the process to allow expedited court review of a new justification. Or it could be an attempt to assert that no justification is needed beyond executive authority.
Trump is, of course, wrong in his argument that citizenship is a relevant factor in either reapportionment and redistricting or in the allocation of Federal funds for programs based on the population. In the first case, reapportionment and redistricting are based on the total number of persons in the United States and in each particular state, not on the number of citizens. This is in the plain language of the Constitution and beyond any interpretation by the Executive Branch to the contrary. Similarly, those Federal programs that base allocation of funds on population do so based on the total population of a given state or portion of a state as determined by the Census, not solely on the number of American citizens. Therefore, neither of those arguments can be used to justify including a citizenship question on the 2020 Census.
Additionally, it’s hard to see what an Executive Order could accomplish that would allow the inclusion of the citizenship question at this late date. Even if the President did take this step, it’s obvious that the matter would end up back in Court both in the currently pending cases in New York and Maryland and in other litigation that has been or would be filed in the event of such an order. The most likely immediate outcome of that litigation would be the imposition of yet more injunctions against the question while the litigation is proceeding, which of course means that we would get closer and closer to the time when the Census itself is supposed to start and it would become less and less likely that it would even be viable to consider starting the process of printing Census questionnaires, which began earlier this week, all over again.
Given that the lawyers for the Justice Department did not give any guidance on what any new attempt to justify the inclusion of the citizenship question might look like, it’s impossible to comment on the legal viability of the position they are taking. It’s true that the Supreme Court left open the possibility that the government could be permitted to go forward with the question if it can come up with a viable alternative explanation. At the same time, though, it is hard to see what the government can come up with at this late date that would succeed where its previous efforts have failed.
The biggest problem any such effort would face, of course, is that the record in the District Courts handling these cases already includes representations by the Commerce Department regarding the reason it decided to include the question. Not only were those reasons roundly rejected by the Courts to which they were presented but at least one of those Courts admonished Commerce Secretary Wilbur Ross to the point where they basically found that he had lied on the stand regarding the decision-making process. Coming up with a new justification in the context of the existing record will just make the government’s whole case seem less credible.
In addition to having to somehow compete with the existing record at the District level, the government’s new explanation will have to somehow have to reconcile itself with newly discovered evidence that strongly points toward a blatantly partisan justification for the question. This newly discovered evidence consists of a study conducted by a Republican political consultant who has since died that argued that including the citizenship question would likely discourage Latinos from filling out the census form, thus decreasing the count in states with high Latino populations. The study also argued that this stood to benefit Republicans because it would impact reapportionment of Congressional seats after the Census. All of this was apparently discovered just recently by the consultants family as they went through his papers and records. Obviously, if the Justice Department does go forward with some alternative legal argument to try to get the citizenship question back on the ballot, it will have to deal with this evidence which appears to undercut any argument that there was a legitimate non-partisan reason for including the question.
On top of all of that there is the issue of timing and the fact that the process of printing the Census without the citizenship question has already begun and that, so far, there is no indication that the process will be stopped, or that it can be stopped without delaying the point at which counting will begin early in 2020. The longer the litigation goes on and the injunctions remain in effect, the less likely it becomes that the question will be included regardless of what the President might say.
