Trump Administration Appears To Flip-Flop On Census

A day after appearing to have conceded the issue, the Trump Administration says it is still looking for a way to include a citizenship question on the ballot.

One day after appearing to have brought the controversy regarding adding a citizenship question to the 2020 Census to an end, the Trump Administration appears to have reversed courts, with the Justice Department advising a Federal Judge that they were seeking to find a way to include the question in the wake of a Presidential tweet and even as the printing of the Census questionnaire without the citizenship question appears to be going forward:

The Justice Department said Wednesday that the government is looking for a way to add a citizenship question to the 2020 Census, just one day after it said it would drop that effort and was printing the form without it.

The course reversal came just hours after President Trump said he was “absolutely moving forward” with adding the question, in a tweet that seemed to catch government lawyers off guard as they were summoned by two federal judges to explain the administration’s change of heart.

The reversal came during a phone call with a federal judge in Maryland who had ruled againstincluding the question, and, shortly afterward, in a filing to a New York federal judge who had also ruled against the question.

Joseph Hunt, assistant attorney general for the department’s civil division, said the administration was looking for a legal path forward after the Supreme Court last week froze the administration’s plan to include it on the survey sent to every U.S. household and said the administration needed to provide a better justification if it wants to add it.

Hunt told Judge George J. Hazel of the U.S. District Court for the District of Maryland that Justice lawyers had been “instructed to examine whether there is a path forward, consistent with the Supreme Court’s decision.” Hunt did not say who issued the instruction.

In a separate filing to Judge Jesse Furman of the Southern District of New York late Wednesday afternoon, Hunt wrote that the Justice and Commerce departments had been asked to “reevaluate all available options” and that Commerce may adopt “a new rationale” for including the question.

The government has said in multiple legal battles that it needed the question on the form to help enforce the Voting Rights Act. It is not clear what a new rationale would be.

The discussions came amid a day of legal turmoil triggered by a Wednesday morning tweet from Trump that his administration was “absolutely moving forward” with its plan.

“The News Reports about the Department of Commerce dropping its quest to put the Citizenship Question on the Census is incorrect or, to state it differently, FAKE!” Trump wrote. “We are absolutely moving forward, as we must, because of the importance of the answer to this question.”

Hazel said he had seen the tweet, a transcript of the phone call shows, and ordered lawyers in the Maryland case to get on an afternoon call with him to try to clarify the government’s plan in a case that appeared to be resolved as of Tuesday night.

But even on that call, there was discord among Justice Department lawyers.

The transcript of the call shows that Joshua Gardner, who had led the government defense team in the cases before Hazel, said as far as he knew the whole issue had been resolved Tuesday. The question was removed and the form was being printed without it. The president’s tweet was the first he had heard otherwise.

“The tweet this morning was the first I had heard of the President’s position on this issue, just like the plaintiffs and Your Honor,” Gardner said to the judge, the transcript shows. “I do not have a deeper understanding of what that means at this juncture other than what the President has tweeted. But, obviously, as you can imagine, I am doing my absolute best to figure out what’s going on.”

Gardner turned the call over to Hunt, who said the plan was to try to move ahead.

Plaintiffs in the case expressed outrage Wednesday night over the backtracking.

“Under this administration, there’s no accounting for doubling down on stupid,” Thomas A. Saenz, president and general counsel of the Mexican American Legal Defense and Educational Fund, said in a statement.

“Today’s reversal from yesterday’s certainty repeats the pattern of this entire affair, which began with Secretary Wilbur Ross — who inexplicably remains in the Cabinet — lying to Congress and the public about the reason for the late attempted addition of a citizenship question to Census 2020. MALDEF is fully prepared to demonstrate in court that racism is the true motivation for adding the question, and by doing so, to prevent the question from appearing on the Census.”

Dale Ho, director of the ACLU’s Voting Rights Project and a lead attorney for plaintiffs in the New York trial, vowed that “any attempt at an end run around the Supreme Court’s decision will be unsuccessful, and will be met swiftly in court.”

Hazel told the government it has until 2 p.m. Friday to put into writing that the question was dropped or tell him how it planned to defend against a legal challenge in his court contending the question arose from an intent to discriminate against minorities. If the government fails to reply by then, Hazel said, he will start moving forward with discovery in the case before him.

A claim of conspiracy and intent to discriminate had been sent back by an appeals court to Hazel after new evidence suggested the government had worked with a Republican redistricting strategist who saw the question as a way to provide a structural electoral advantage to white Republicans. Hazel had initially ruled that plaintiffs had not proved that charge, but after the new evidence came to light, he said he would reconsider it.

More from The New York Times:

WASHINGTON — A day after pledging that the 2020 census would not ask respondents about their citizenship, Justice Department officials reversed course on Wednesday and said they were hunting for a way to restore the question on orders from President Trump.

The contentious issue of whether next year’s all-important head count would include a citizenship question appeared to be settled — until the president began vowing on Twitter on Wednesday that the administration was “absolutely moving forward” with plans, despite logistical and legal barriers.

Mr. Trump’s comments prompted a chaotic chain of events, with senior census planners closeted in emergency meetings and Justice Department representatives summoned to a phone conference with a federal judge in Maryland.

On Wednesday afternoon, Justice Department officials told the judge that their plan had changed in the span of 24 hours: They now believed there could be “a legally available path” to restore the question to the census, and they planned to ask the Supreme Court to help speed the resolution of lawsuits that are blocking their way.

The reversal sends the future of the census — which is used to determine the distribution of congressional seats and federal dollars — back into uncertain territory.

The Supreme Court last week rejected the administration’s stated reason for adding the citizenship question as contrived. But Chief Justice John G. Roberts Jr., writing for the majority, left open the chance that the administration could offer an adequate rationale.

Faced with tight printing deadlines, administration officials said on Tuesday that it was time to abandon the effort and begin printing forms this week that do not contain the citizenship question.

Justice Department lawyers told United States District Judge George J. Hazel in a telephone conference that a decision to eliminate the question from census forms had been made “for once and for all.” Commerce Secretary Wilbur Ross, whose department oversees the Census Bureau, issued a separate statement accepting the outcome.

But a day later, an extraordinary scene played out on a conference phone call between Judge Hazel and Justice Department officials, who appeared to be blindsided by the president’s comments online.

On Wednesday afternoon, Judge Hazel opened the call by saying that Mr. Trump’s tweet had gotten his attention. “I don’t know how many federal judges have Twitter accounts, but I happen to be one of them, and I follow the president,” he said.

Joshua Gardner, a Justice Department special counsel for executive branch litigation, responded: “The tweet this morning was the first I had heard of the president’s position on this issue, just like the plaintiffs and Your Honor.”

He added: “I do not have a deeper understanding of what that means at this juncture other than what the president has tweeted. But, obviously, as you can imagine, I am doing my absolute best to figure out what’s going on.”

Mr. Gardner said that census forms would continue to be printed without the citizenship question, and that federal court rulings barring its inclusion, upheld in part by the Supreme Court, were still in force. But he added that he could not promise that would remain the case.

“This is a fluid situation and perhaps that might change,” he said, “but we’re just not there yet, and I can’t possibly predict at this juncture what exactly is going to happen.”

That seemed an apt summation of the entire census process, which has lurched from lawsuit to crisis and back since the citizenship issue arose, and seemed on the verge of being upended on Wednesday.

(…)

On Wednesday, Judge Hazel ratcheted up the pressure on the administration to make up its mind, ordering the Trump administration either to confirm by Friday afternoon that it was not placing the citizenship question on the census questionnaire, or offer a schedule for continuing the Maryland lawsuit.

“Given that tomorrow is the Fourth of July and the difficulty of assembling people from all over the place, is it possible that we could do this on Monday?” Mr. Gardner asked.

“No,” the judge replied. “I’ve been told different things, and it’s becoming increasingly frustrating.”

As Judge Hazel spoke with the two sides in the Maryland case, the federal district judge overseeing the New York lawsuit ordered the Justice Department to update him on those discussions so he could decide whether to schedule a similar conference in that suit.

On Wednesday afternoon, White House officials were actively working on a way to satisfy Mr. Trump’s demand but had not yet settled on a solution.

The Justice Department ultimately acted under pressure from Mr. Trump, who had reacted angrily to the Supreme Court’s handling of the census case and insisted that his administration move forward despite the court’s ruling. Mr. Trump had blamed Mr. Ross in particular for the handling of the census question.

Here are the President’s tweets on this issue over the past several days, which of course have just added to the confusion over what the government’s position is in these cases:

The transcript of the hearing before Judge Hazel, which I have embedded below, is a short and amusing read that demonstrates, I think, just how hard it’s going to be for the Trump Administration to reverse course on this issue. Even as one attorney from the Justice Department is telling the Judge that as far as he knew the notice that was sent out on Monday afternoon informing the Court and Plaintiff’s counsel that the 2020 Census was being printed without the citizenship question, another was saying that the Justice Department was saying that the Administration was looking for a way to include the citizenship question while still satisfying the holding of the Supreme Court and the various lower courts that have ruled on this matter. Judge Hazel, a Barack Obama appointee who was unanimously confirmed to the District Court by the Senate, was clearly buying none of it and informed lawyers for both sides that he expected an answer from the government regarding its intentions. As Hazel put it, either the government will inform him that they are essentially conceding the case given the fact that the printing of the Census form is already underway or he will move forward with the case before him, which involves yet another challenge to the citizenship question-based in part on the Equal Protection Clause.

The case in New York, meanwhile, is one of the cases that resulted in the multiple injunctions against the inclusion of the citizenship question that remain in effect at this point. It is also the primary court that is considering the impact of newly discovered evidence that appears to substantiate the arguments that the reason for including the question was to provide Republicans with a potential electoral advantage. 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.

Notwithstanding the President’s tweets and the statement from the Justice Department, it seems clear that the Administration ultimately has little choice but to concede in this matter. The facts and the law are clearly on the side of the Plaintiffs here, and the timing of this latest development clearly seems to undermine the government’s position. If the cases in Maryland and New York to proceed forward with the Administration coming up with some new justification for the question, that justification would necessarily be contradicted by the arguments it has already made in the case and with the evidence already on the record. That evidence, of course, made it clear how the Commerce Department generally and Commerce Secretary Wilbur Ross essentially misrepresented the reasoning behind including the question and the fact that the lower courts did not find those justifications to be credible or sufficient. Additionally, reopening the record in the case below would permit lawyers for the parties challenging the inclusion of the question to introduce the aforementioned newly discovered evidence, which appears to be a death knell for any argument that there is a legitimate argument in favor of the citizenship question. The District Courts would need to ignore all of that evidence, as well as their own prior rulings in this matter, in order to rule for the government. And that is quite simply highly unlikely.

In addition to the evidentiary issues that the Federal Government faces at this point, there is also the question of timing. As I’ve noted, the Justice Department had already informed the courts that June 30th was something of a “drop dead” date for the resolution of this issue due to the fact that the printing of the Census form would need to go forward soon after this date in order to ensure that the forms were ready for the beginning of the Census process in 2020, a date that is set in stone by the Constitution itself. The Justice Department also made this argument to the Supreme Court when it asked for an expedited ruling on its appeal earlier this year. This is seemingly confirmed by the fact that, notwithstanding yesterday’s Presidential tweets, the Commerce Department is moving ahead with printing the Census form. If the government were to argue now that the deadline it had relied on up until now, it would seriously undermine its credibility with the courts. Given all of that, the odds that the President will actually get what he wants seem to me to be pretty low

Here’s the transcript of the hearing before Judge Hazel:

Kravitz et al v. Dept. of C… by on Scribd

.And here’s the DoJ letter to Judge Furman:

DoJ Letter to Judge Furman by on Scribd

FILED UNDER: Donald Trump, Law and the Courts, Politicians, Supreme Court, U.S. Constitution, US Politics
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. DrDaveT says:

    MR. HUNT: We at the Department of Justice have been instructed to examine whether there is a path forward, consistent with the Supreme Court’s decision, that would allow us to include the citizenship question on the census. We think there may be a legally available path under the Supreme Court’s decision. We’re examining that, looking at near-term options to see whether that’s viable and possible.

    WTF? “We have been instructed to examine whether ‘no’ might perhaps be construed as ‘yes’. We think there may be a legally viable path to ‘yes’ that is consistent with ‘no’. We’re looking at near-term options to see if ‘no’ can mean ‘yes’.”

    Does that make sense to anyone here?

  2. James Joyner says:

    @DrDaveT:

    We’re looking at near-term options to see if ‘no’ can mean ‘yes’.”

    Does that make sense to anyone here?

    The Supremes didn’t rule that including the question was unconstitutional by, say, violating the Equal Protection Clause. Rather, they ruled that the transparent lie about why it was included meant it didn’t pass legal muster because of the Administrative Procedures Act. Chief Justice Roberts practically invited the Administration to come up with a more plausible reason and come back. The problem, really, is time: the Administration had previously argued that they really, really needed to print ballots this summer.

  3. Teve says:

    “Tell me a better lie and then I’ll believe it.” Is what passes for Intellectual Republican these days.

  4. grumpy realist says:

    The fact is, the original slap-down came via an Administrative law argument, which is more of a “well, you can possibly get from A to B…but not using that method” stance. We haven’t even gotten to any Equal Protection arguments. Which am awfully certain would blow the stupid thing out of the water, especially in light of the new evidence.

    And no, the fact that that SCOTUS didn’t reach for the Equal Protection Clause argument doesn’t mean that they’re trying to get around it. It’s a standard policy in law courts that if you can decide an issue without needing to reach for a Constitutional argument, you do so. The Administrative Law argument was sitting there available for use, so they used it.

    I’m trying to figure out how the DOJ is going to be able to get anything in front of SCOTUS again. The Administrative Law argument slapped down the argument and they’ve already started to print the forms in light of the deadline, so isn’t the question moot at present? And if they try to litigate for the 2030 census, I can see SCOTUS bouncing it on grounds of ripeness.

  5. Tyrell says:

    I have not studied the various issues about asking people if they are a US citizen on the US Census. I fill out forms, surveys, applications weekly and that question comes up some.
    It seems like a basic, common sense question when trying to get demographics and a view of the population.
    One year I thought about applying for a job as a census taker, but just walking around here in the summer is hot work. “Real feel” yesterday was 103 degrees, add ten more if you are in a theme park. And the humidity in the 70’s. Tomorrow is a cold front: high 98.
    Once it gets over 94, it all feels the same anyway. Heat pumps don’t work well when it gets over 95.

  6. Bob@Youngstown says:

    As any genealogist will admit, the federal census has asked residents some questions that, while interesting, were not pertinent to the constitutional mandate of counting persons who reside in the US.
    Much like questions about occupation or hours worked the week prior to the census they provide interesting demographic information but are not responses needed to complete the constitutional requirement.
    The citizenship question that is advocated by the Trump administration is not ” a most vital of questions” for purposes of the census, I will grant that the question has vitality for partisan political purposes. .

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  7. Bob@Youngstown says:

    @Tyrell:
    Whether you choose to provide demographic information to a survey is certainly your privilege. You can choose to (or not) provide all manner of personal information to anyone or everyone you choose, however, the federal census is one survey that imposes legal penalties if you decide to skip a question or answer in a untruthful manner. So the federal census is not comparable to the random surveys.
    I would also point out that the mandate in the constitution is to COUNT people, not to provide demographic data.

    Your political party affiliation is clearly a demographic. Who you voted for in the last election election is clearly a demographic. Would you defend putting those demographic questions on the Federal census and threatening to prosecute individuals who are unwilling to answer or answer untruthfully?

  8. Sleeping Dog says:

    Reports that the wanna be dictator in chief wants to issue an executive order inserting the citizenship question. That would certainly be challenged and likely an injunction issued, barring the inclusion of the question until a trial.