On Tuesday, the Trump administration conceded defeat on the 2020 Census, making an averment to the trial court and the parties that it was not going to pursue any further legal action in the Maryland census case.
The Department of Justice and Department of Commerce both released statements consistent with this position.
Then on Wednesday, the Twitter-troll-in-chief tweeted that his own administration’s statements were “fake news” and that he was not abandoning legal proceedings for the citizenship question on the 2020 Census.
U.S. District Judge George J. Hazel, the judge in the Maryland census case, who follows Trump on Twitter for some reason, arranged a telephone conference call for an explanation of the president’s tweet. The DOJ lawyers admitted that they learned about it the same way the judge and other parties had learned about it, and that they had no idea what Trump meant. Judge Hazel gave DOJ lawyers until 2:00 p.m. Friday ET to give him a definitive answer to either enter into a stipulation ending this case, or he would move ahead with a discovery order in the case before him probing whether the government had discriminatory intent in wanting to ask about citizenship.
Election law expert Richard Hasen reports, Breaking: DOJ Tells Federal Court It May Have New Rationale Later for Including the Census Question, Wants to Stop Discovery Now Because a New Decision Would Be Cleaned of Animus (Citing Travel Ban Case):
In a new filing, the Department of Justice has told the federal district court in Maryland considering whether the addition of the citizenship question on the census was done for reasons of racial animus that the government may still come forward with a reason for including the question. Further, the government argues that any new reason would have to be judged by its own terms, as the courts did in the travel ban case. It wants to stop all discovery of bad motives for the original decision as no longer relevant.
This is quite an act of political chutzpah. To begin with, one doesn’t start from a decision and then reserve engineer a rationale to support it. Either there is a reason for including the citizenship question or there is not.
Second, and more importantly, DOJ is arguing for what Joshua Matz has termed “animus cleansing.” Forget if we had discriminatory racial intent before in adding a question, DOJ argues, because any new decision would be fresh and pure. And because of this purity, there’s no need to look whether the government had discriminatory intent to start with. Presto! Nothing to see here court, please move on.
Judge Hazel has already rejected the Trump administration’s gambit. Breaking: Federal Judge in Census Citizenship Question Case Orders Discovery to Continue on Whether Government Acted with Discriminatory Intent:
Judge Hazel order, rejecting the DOJ gambit:
The Court has received and appreciates the discovery plans submitted by both sides. It appears that while the parties agree to the parameters of the proposed schedule, Defendants take the view that discovery on the remaining equal protection and Section 1985 claims should be put on hold pending a “new” decision being reached by the Commerce Secretary. While there is some degree of logic to Defendants’ position, the Court disagrees based on the unique circumstances of this case.
Plaintiffs’ remaining claims are based on the premise that the genesis of the citizenship question was steeped in discriminatory motive. The discovery contemplated by the Court related to the recently discovered evidence [the Hofeller files] in this case goes directly to that issue. Regardless of the justification Defendants may now find for a “new” decision, discovery related to the origins of the question will remain relevant. Given that time is of the essence, therefore, the prudent course is to proceed with discovery. As both sides acknowledge, the schedule may be adjusted as circumstances warrant.
So what happens now? First, it is important to remember that the Trump administration made an averment to two trial courts and the U.S. Supreme Court that the printing deadline for the census was July 1. The Supreme Court agreed to hear the appeal, bypassing the appellate courts (a rare occurrence) and added a constitutional question that the parties had not raised on appeal, based upon this averment. By seeking a delay in this case now, the Trump administration is making an admission that it lied to two trial courts and the U.S. Supreme Court. It has firmly established its bad faith before the federal courts, which is not going to gain the administration any favors from the federal courts.
Secondly, Richard Hasen lays out what I believe to be the correct procedural posture of this case going forward. Gaming Out the Census Citizenship Question Endgame: What Comes Next, and How Will Things End?
I thought I’d pull together some thoughts on the issue of whether the Trump Administration will try again to add a citizenship question to the census, after sharing some earlier thoughts across this blog, to NPR, and at Slate.
The day the opinion came out I saw that Chief Justice Roberts left an opening for a do-over by the Trump Administration. Whether it is because Roberts changed his mind in the drafting process or not, Chief Justice Roberts’ opinion for the Court in Department of Commerce offers many more reasons why the government could include a citizenship question on the census than why it could not. The “could not” came down to the fact that it was undisputed that the reason Secretary Ross cave for including the question—to help bring Voting Rights Act claims to favor Hispanics—was a pretext. (No one who brings such cases needs citizenship data from the census, and the Trump Administration is bringing no such cases.) And later released secret documents from the Hofeller files show that the real intent was to boost white, Republican voting power which would hurt Latinos. This pretext was too much for Roberts, joined in this part of his opinion by the liberal Justices. (The other conservative Justices were willing to simply ignore the pretext and accept the government’s unbelievable claims on face value.)
Many thought the Court’s ruling would be the end, because the government had represented all along that the printing needed to happen beginning July 1 (though the plaintiffs said it could happen as late as October, at a higher cost). The government appeared to concede the case was over, there were reports of the Trump cave, and a Trump tweet turned everything around. With pressure from people like the Federalist Society’s Leonard Leo, Trump is forcing his Justice Department to look for a new pretext for including the question. (His own tweets suggests he wants to know the number of non-legal residents, but the proposed census question does not ask about legality of residence, only citizenship.)
So Leonard Leo from the Federalist Society now determines which conservative judges, who are members of the Federalist Society, get appointed to the federal bench by President Trump, and he is also the de facto Attorney General directing legal decisions for the Department of Justice? What happened to William “Coverup” Barr? Does the Attorney General also take his orders from Leonard Leo, like the president? And who died and made Leonard Leo king? This is corruption.
The DOJ lawyers are in a bind because they know that it can’t be just a pretext, and yet the President is ordering them to act. This puts them in an ethical dilemma, one which seemed to catch them off guard.
But assuming at least some political folks are willing to do Trump’s bidding, the government could indicate it is working on a new set of reasons for including the question. As Marty Lederman has suggested, it could be as simple as citing to footnote 1 in Justice Alito’s separate opinion in Department of Commerce: “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.” The reasons could be in a statement from Secretary Ross, or an executive order from the President.
Axios reported this morning that Trump considers executive order on citizenship question: “Why it matters: Trump’s insistence on pushing ahead with the question, potentially without doing the legwork the Supreme Court called for, reflects his expansive view of executive power.” Well now, this smells of William “Coverup” Barr, who believes in an expansive “Imperial presidency.”
Some say the executive order could help things for the Administration, since the President is not subject to the Administrative Procedure Act and doesn’t have to offer reasons for his actions.
But the problem for the administration is that there are injunctions in place preventing the inclusion of the question, whether or not the APA applies. And if it still looks like the Administration is offering a pretext, I do not expect the lower courts to lift those injunctions. (There has even been talk of the Administration simply ignoring the courts, which would create a constitutional crisis.)
If the administration goes forward with the new reason, there will be a quick resolution of the equal protection claim in the Maryland Court. (This is the claim that the question was added with the intent to discriminate on the basis of race.) This is an issue the Supreme Court never decided, and would present an independent ground to block the question. And the lower court judge in the Department of Commerce case also would have to be convinced that any new reason is not a new pretext.
This means that if the Administration pushes the issue, it is going to be back before the Supreme Court, possibly during the summer, with Justices scattered and new clerks in place. I said earlier that Chief Justice Roberts left a window open, but he left it open for a DOJ and Administration to act in a savvy way. These reversals and rule via tweet smack of amateur hour. This has got to be annoying Roberts, who is no doubt paying attention.
So it still all comes down to Roberts, if the administration wishes to push this hard. And I don’t know what Roberts will do, but the last two weeks have not helped the Administration’s case.
As the Department of Justice concedes, the status quo is that the trial court injunctions remain in place and that the census forms are currently being printed without the citizenship question. It would seem impractical, and a waste of taxpayer money, to order the census forms currently being printed to be reprinted with the census question at a later date.
Assuming, arguendo, that the Trump administration can convince a federal court, or more directly Chief Justice John Roberts, that its “new” pretext reason is good enough for him, it seems to me we are likely talking about a supplemental form.
As Richard Hasen notes, only asking about U.S. citizenship status would exclude some 13.2 million legal permanent residents (LPR) living in the U.S. as of the last midterm census in 2015, as well as the estimated 12.0 million undocumented aliens living in the U.S. as of the last mid-term census in 2015.
This would result in an intentional substantial undercount in the 2020 Census, and is unconstitutional. Section 2 of the 14th Amendment expressly provides, in relevant part, “Representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state, excluding Indians not taxed” — not citizens, but persons.
The whole point of the census is to get a snapshot of just how many people are in the U.S. at a given time.
UPDATE: The Justice Department lawyers are not being helped by the Twitter-troll-in-chief, who acknowledged on Friday that the “number one” reason for a citizenship question is “for districting.” He meant redistricting. That’s a problem because Solicitor General Noel Francisco told the Supreme Court that using citizenship data for redistricting was not the purpose of the census citizenship question. Trump is exposing the lie by saying out loud the voices he hears in his head.