Trump Administration Caves On Census Question On 2020 Census

In the wake of an adverse Supreme Court ruling, the Trump Administration has decided not to include a citizenship question on the 2020 Census.

In the wake of last week’s Supreme Court opinion upholding lower court decisions that blocked the Trump Administration from placing a question regarding citizenship on the 2020 Census, it was unclear exactly what the next step would be. As it was, the Justices had left the issue open in that they had remanded the case back to the lower courts to give the opportunity to come up with a better explanation for why it wanted to include the question. Additionally, the President, still traveling overseas at the time, condemned the decision and suggested that he would ask his advisers about the possibility of delaying the census until the Federal Government could come up with an answer acceptable to the courts. That position, though, appeared to conflict directly with the representation that the Justice Department’s lawyers had made to both the Justices and to lower courts dealing with other cases involving the Census that there was a “drop dead” date of June 30th on which the Government would need to begin the process of printing the Census and with the explicit language of the Constitution regarding the timing of the Census, which effectively requires that the count be done by the end of 2020.

Late yesterday, though, the Administration effectively brought the controversy to an end by announcing that the Census form would be printed without the citizenship question:

WASHINGTON — The Trump administration, in a dramatic about-face, abandoned its quest on Tuesday to add a citizenship question to the 2020 census, a week after being blocked by the Supreme Court.

Faced with mounting deadlines and a protracted legal fight, officials ordered the Census Bureau to start printing forms for next year’s head count without the question.

The decision was a victory for critics who said the question was part of an administration effort to skew the census results in favor of Republicans. It was also a remarkable retreat for an administration that typically digs into such fights.

Just last week after the Supreme Court’s decision, President Trump said he was asking his lawyers to delay the census, “no matter how long,” in order to fight for the question in court. He reiterated his unwillingness to give up in a Twitter message posted late Tuesday, saying he had asked administration officials “to do whatever is necessary” to get a citizenship question on the census form.

Word of the administration’s decision to stop fighting came in a one-sentence email from the Justice Department to lawyers for plaintiffs in a New York lawsuit that sought to block the question’s inclusion in the head count.

The email offered no explanation, but the administration was confronting weeks or months of additional legal challenges to the question. Meanwhile, the Census Bureau had said it needed to begin printing questionnaires by July 1 to meet the April 2020 deadline for conducting the census.

The administration’s decision appeared to end a yearlong battle over the country’s all-important decennial head count. Census results are used to divvy up seats in the House of Representatives and to draw political maps at all levels of government. They are also used to allot federal funding for key social services.

The addition of a citizenship question to the census could have had profound implications for American politics. Officials at the Census Bureau itself have said that including the question would lead to an undercount of noncitizens and minority residents. As a result, areas with more immigrants, which tend to vote Democratic, could have lost both representation and federal funding.

The Supreme Court last week rejected the administration’s stated reason for adding a question on citizenship to the census, and while the decision was not a conclusive ruling, the justices placed a daunting hurdle before the government.

Commerce Secretary Wilbur Ross said in a statement on Tuesday night that he respected the Supreme Court, but strongly disagreed with its ruling.

“The Census Bureau has started the process of printing the decennial questionnaires without the question,” he said. “My focus, and that of the Bureau and the entire Department is to conduct a complete and accurate census.”

Dale Ho, director of the Voting Rights Project at the American Civil Liberties Union, which was among the plaintiffs trying to block the question, praised the outcome, saying the Supreme Court left the administration with “no choice but to proceed with printing the 2020 census forms without a citizenship question.”

As drafted by the administration, the census would have asked: “Is this person a citizen of the United States?” Options were to include: “Yes, born in the United States”; “Yes, born in Puerto Rico, Guam, the U.S. Virgin Islands, or Northern Marianas”; “Yes, born abroad of U.S. citizen parent or parents”; “Yes, U.S. citizen by naturalization”; or “No, not a U.S. citizen.”

For the last year, there has been a bitter legal battle over whether the Commerce Department broke the law when it decided in March 2018 to tack a citizenship question onto the census, long after other aspects of the questionnaire had been finalized.

The department, which oversees the Census Bureau, had argued that the Justice Department needed a more accurate count of citizens to enforce the 1965 Voting Rights Act, but three lower courts ruled that that was an obvious pretext for some other unstated goal.

The department’s explanation was further undermined last month after plaintiffs uncovered computer files from a deceased Republican political strategist, Thomas B. Hofeller, who had first urged the incoming Trump administration in 2016 to consider adding the question to the next census.

The files included a study in which Mr. Hofeller concluded that a citizenship question was central to a strategy to increase Republican political power by excluding noncitizens and persons under voting age from the census figures used for drawing new political boundaries in 2021.

The disclosure led to the reopening of one of the lawsuits opposing the question, and plaintiffs were scheduled to begin new efforts this month to prove that the question was an effort to discriminate against Hispanics for political gain.

Not surprisingly, the decision did not sit well with the President, who took to Twitter both last week and last night to attack the SUpreme Court:

Notwithstanding the President’s laments, the Administration clearly had no choice but to concede the matter given the facts in the case, the law, and the limited amount of time available to resolve the matter before the printing process needed to begin. Even if the Administration attempted to return to the lower courts with a different justification for including the question, that would have conflicted with the evidence already on the record showing 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 have allowed lawyers for the parties challenging the inclusion of the question to introduce evidence that had been uncovered after the case was already before the Supreme Court but which had not been available at trial.

Specifically, 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. If the Federal Government had gone back to a lower court, it’s inevitable that this evidence, which undercuts any argument that there was a valid non-partisan reason for including the citizenship question, would have become part of the record, making the odds of a Federal Government win even slimmer.

Notwithstanding the President’s claim in his Tweets last night about continuing to search for a way to get the question back in the Census, it’s clear that this means that this debate is effectively over for the next ten years at least. With the printing process started and other Census preparations well underway, no court is going to consider intervening to reverse the previous rulings. One could also argue that the cases that are still open at this point are effectively mooted by the Administration’s decision to go forward without the citizenship question. The President will no doubt use this to rant to his supporters, but the odds that there will be any change in the status quo are essentially zero at this point.

FILED UNDER: Donald Trump, Law and the Courts, Politicians, Supreme Court, 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. Joe says:

    I wish you and James would coordinate your threads. I like the commentariat here, but it’s hard to follow parallel comments on the same topic.

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  2. Daryl and his brother Darryl says:

    Individual-1 is now calling this FAKE NEWS.

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  3. @Joe:

    We do need to do that. I hadn’t seen his post until after mine went live. It’s happened before, though.

    ReplyReply
  4. Daryl and his brother Darryl says:

    @Daryl and his brother Darryl:
    Individual-1:

    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! We are absolutely moving forward, as we must, because of the importance of the answer to this question.

    This despite wilbur Ross announcing it, and the DOJ confirming it.
    It’s almost like the unindicted co-conspirator doesn’t know what his administration is doing.

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  5. michael reynolds says:

    @Doug Mataconis:
    I just think you and James (and Steven when he’s writing) should treat duplicate posts like the old Point/Counterpoint. I think you should open with, “James, you ignorant slut.”

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  6. Teve says:
  7. Teve says:

    last night:

    Donald J. Trump
    ‏@realDonaldTrump

    A very sad time for America when the Supreme Court of the United States won’t allow a question of “Is this person a Citizen of the United States?” to be asked on the #2020 Census! Going on for a long time. I have asked the Department of Commerce and the Department of Justice….

    Donald J. Trump
    @realDonaldTrump

    ….to do whatever is necessary to bring this most vital of questions, and this very important case, to a successful conclusion. USA! USA! USA!

    linky

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  8. Mikey says:

    @Teve: He doesn’t know how the census works, either. It’s supposed to count “the whole number of persons in each State,” not differentiate between citizens and non-citizens.

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  9. MarkedMan says:

    [Repeated fro James’ post]

    The Republican Party has essentially adopted an apartheid mentality, wherein anything is justified to keep “the right people” in power. This was inevitable given both demographics and, more importantly, the decision by those in power to adapt the Southern Strategy. There was a flurry a decade or so ago when some party officials questioned whether this could be sustained any longer and started an outreach to hispanics, but this was doomed to failure. Trump finally tore off the tattered veil of pretend respectability and even the most willingly blind had to see the racist and supremicist face beneath. A few, sickened, left the party. But for the most part even the never-Trump Republicans are still Republican. And that means they however much they harrumph and tut-tut, they will back the disenfranchisement of minorities.

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  10. Andy says:

    @michael reynolds:

    Those remain some of my favorite SNL skits of all time.

    ReplyReply
  11. Andy says:

    @Mikey:

    @Teve: He doesn’t know how the census works, either. It’s supposed to count “the whole number of persons in each State,” not differentiate between citizens and non-citizens.

    There’s a valid argument (IMO) that the census should only count the number of whole persons and nothing else. That would require that demographic and other information be collected on a different survey.

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  12. CSK says:

    @Teve: Trump is reacting to criticism that he backed down on this. His shaky little ego can’t take it.

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  13. grumpy realist says:

    Judge involved in matter may create a smackdown.

    If he does, I expect Trump to blow his top.

    At some point, someone is going to have to teach Trump the lesson that no, the POTUS is NOT above the law.

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  14. Daryl and his brother Darryl says:

    @Daryl and his brother Darryl:
    Now the plaintiffs have asked the Judge to schedule a status conference to find out what Individual-1 is talking about.
    This could get entertaining.

    ReplyReply
  15. Gustopher says:

    @Andy: My millennial coworkers at my last job did not believe that was real when I mentioned it. Ruined the name Jane for a generation.

    I’m hoping we get another thread on Iacocca letting us know that he is still dead.

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  16. Jen says:

    For anyone still tracking this, two judges are having none of this. Judge Hazel in Maryland ordered a 3:30 p.m. conference call on this, which resulted in an order that all parties come up with a stipulation saying the citizenship question will NOT be on the form, or equal protection claims will go forward. Judge Furman in New York has set up a similar call to be held no later than 6 p.m. today. Tweet thread on status here.

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  17. Moosebreath says:

    @Jen:

    And meanwhile, according to TPM, the Justice Department says they are still looking for a way to get the question on the census form.

    “Jody Hunt, a top DOJ official, told the judge that the administration believed there may be a “legally available” path to getting the question re-added while still complying with the Supreme Court’s ruling, according to a transcript of the hearing obtained by TPM.

    Hunt said the plan, if the government goes down that route, is to go directly to the Supreme Court to get instructions on how to streamline future proceedings over its efforts to re-add the question.”

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  18. Teve says:

    @Gustopher: no room. We need another 11 or 12 threads about post-debate Dem polls.

    ReplyReply
  19. Jen says:

    @Moosebreath: Indeed they are.

    The transcript of the 3:30 call has been released and it’s crazy. No one has a f*&king clue what is going on.

    ReplyReply
  20. Gustopher says:

    @Teve: maybe headline “Lee Iacocca is still dead” with a subtitle about the Democratic Nominee polls being in disarray.

    I would happily settle for “Democratic Nominee Candidates Still Being Polled.”

    ReplyReply
  21. Teve says:

    @Jen: apparently one of the judges saw what Trump was saying on Twitter, and just happened to notice that it completely contradicted what the government lawyers told the court?

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  22. Jen says:

    @Teve: Yes, but the government’s lawyers hadn’t really been looped in to this change in plans, apparently. And now they all have to work tomorrow to pull together what she’s requested be delivered by 2 p.m. on Friday.

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  23. Jax says:

    @Jen: I like to call that “Siphoning off Trump voters, one working holiday at a time.” It’s pretty much guaranteed that every single person involved in this is cussing Trump for that Tweet, and his teeny tiny ego. Wilbur Ross deserves it, but he’s probably not the one doing the legwork.

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  24. An Interested Party says:

    It’s nice to see a modern-day example of how banana republics worked…well, I’m sure the leaders of such places were much more competent than this idiot…

    ReplyReply
  25. Just nutha ignint cracker says:

    @An Interested Party: For (hopefully) the last time, the United States is not a banana republic. It is simply too cold in the 48 contiguous states to grow bananas, and Hawaii only has them because they were imported there.

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  26. Moosebreath says:

    @Just nutha ignint cracker:

    “It is simply too cold in the 48 contiguous states to grow bananas, and Hawaii only has them because they were imported there.”

    By that standard, none of the Central American countries can be banana republics, either. Bananas were imported to there, as they are native to southeast Asia and the islands off of it (like the Philippines).

    ReplyReply
  27. Teve says:

    Here in North Florida there’s a big banana tree on my property and it grows clusters of little weirdo bananas that I’ve never tried to do anything with.

    ReplyReply

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