Trump Administration Still Trying To Justify Including Citizenship Question On Census

The Trump Administration has informed Federal District Court Judges in Maryland and New York that it intends to still try to justify putting a citizenship question on the 2020 Census.

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.

FILED UNDER: Borders and Immigration, 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. James Joyner says:

    @Doug

    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.

    I’m reminded of the old show “Get Smart,” in which the protagonist frequently inquired, “Wouldja believe . . . ?”

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  2. This story has it all:

    1) Xenophobia
    2) Lying
    3) Attempts to erode representative democracy in favor of the GOP
    4) Disrespect for the actual text of the Constitution
    5) Fiscal irresponsibility (how much is all of this costing? Especially if they have to reprint the forms?)

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  3. Stormy Dragon says:

    Even aside from the census question: this case went directly from the district court to the Supreme Court, skipping the entire appeals process, due to the administration arguing that the issue had to be resolved by June 30th.

    If they come back now and go “‘lol, we lied about the deadline, oh and we want another expedited review”, the courts are not going to be amused.

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  4. Stormy Dragon says:

    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.

    The Census clause is in Article I, not Article II, which means it is one of congress’s enumerated powers, not the presidency’s. 13 U.S. Code § 4 explicitly delegates this power to the Commerce Secretary, not the President.

    So how can Trump issue an executive order to exercise a power he doesn’t possess?

  5. James Joyner says:

    @Stormy Dragon:

    13 U.S. Code § 4 explicitly delegates this power to the Commerce Secretary, not the President.

    So how can Trump issue an executive order to exercise a power he doesn’t possess?

    The Commerce Secretary was appointed by and serves at the pleasure of the President. And it’s arguable that the Take Care Clause (“take care that the laws be faithfully executed”) gives him the authority to issue orders to the Commerce Secretary to carry out delegated powers.

  6. Stormy Dragon says:

    @James Joyner:

    This analysis:

    Powers Derived From The “Take Care” Duty

    Suggests to me that you’re getting the Take Care Clause backward: if congress delegates powers to the president he can further delegate them to the department heads, not that if congress delegates power to the department heads that the president can order them on how to exercise it.

    I’d particularly point out Kendall v. United States ex Rel. Stokes, 37 U.S. 524 (1838), which addresses precisely this issue: if congress delegates some decision to the solicitor of the treasury, the president can’t overrule that decision

    It was urged at the bar that the Postmaster General was alone subject to the direction and control of the President of the United States with respect to the execution of the duty imposed on him by the law under which the Solicitor of the Treasury acted, and this right of the President was claimed as growing out of the obligation imposed upon him by the Constitution to take care that the laws be faithfully executed.

    By the Court

    “This doctrine cannot receive the sanction of this Court. It would be vesting in the President a dispensing power which has no countenance for its support in any part of the Constitution, and is asserting a principle which, if carried out in its results to all cases falling within it, would be clothing the President with a power to control the legislation of Congress and paralyze the administration of justice.”

  7. Stormy Dragon says:

    @Stormy Dragon:

    Heck, just consider the ongoing issue with Trump wanting the fed rate lowered. If he can order any executive branch official to do anything, why doesn’t he just order the fed to lower the rate?

    Answer: because congress didn’t grant the President that power, they granted the fed board that power.

  8. michael reynolds says:

    If Trump gets away with this the response should be massive non-compliance. Invalidate the entire census by refusing to play along with this racist, self-dealing Republican bullshit.

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  9. Stormy Dragon says:

    @michael reynolds:

    I’m pretty sure Republicans would love for Democrats to boycott the census, assuring they’re underrepresented in congress for the next 10 years.

  10. @michael reynolds: I was thinking a similar thought–and then I realized who that helps.

  11. Kathy says:

    @James Joyner:

    “We need to ad the citizenship question for some reason to do with the Voting Rights Act. Would you believe that? The Voting Rights Act?”

    “I find that hard to believe.”

    “Would you believe for an adequate distribution of Federal funds?”

    “I don’t think so.”

    “How about partisan advantage and minority vote suppression?”

    “I’m ruling in favor of the plaintiffs.”

  12. michael reynolds says:

    @Steven L. Taylor:
    Not if it’s done strategically. Call on liberals in the deep south, the mountain west, Texas and Florida not to comply, while simultaneously encouraging New Englanders and west coasters. The Trumpaloons will try to counter and the result would be a census invalid on its face.

  13. @michael reynolds: That’s one massive collective action and coordination problem right there.

    (Note how hard it is to just get people to turn out to vote).

  14. MarkedMan says:

    Bear in mind that it already looks like the census will be handled by the Trump administration in roughly the same way that Katrina was handled by the Bush administration. Add on top of that what would happen if Trump goes against the Supreme Court by executive order. We will be litigating this census for until the next one occurs.

  15. @Stormy Dragon:

    The Commerce Secretary serves at the pleasure of the President and the E.O. can direct the Commerce Secretary to act.

  16. Stormy Dragon says:

    @Doug Mataconis:

    Do you have a precedent to back up that assertion?

  17. Joe says:

    Why haven’t we heard “national emergency” yet?

  18. Gustopher says:

    @michael reynolds: if you’re going to play with the census numbers, why would you do so in a way that hurts you?

    You might want to ensure that the migrant family living in your guest bedroom is properly counted, however.

  19. Barry says:

    @Doug Mataconis: “The Commerce Secretary serves at the pleasure of the President and the E.O. can direct the Commerce Secretary to act.”

    As has been noted above, it’s not that simple. In addition, if it was true, then the President is indeed a dictatorship.

  20. Ken_L says:

    @Stormy Dragon: As I understand Barr’s ‘unitary executive’ principle, the president is the entire executive government. Nobody in the executive has any authority outside his. References in legislation to other officials are by implication references to the president. L’etat, c’est le president.

    Whether the courts will agree is a different matter, of course. But I sense Trump is getting closer and closer to the point where he’ll say a decision by a bunch of so-called judges is wrong and he doesn’t intend to take any notice of it. And it’s by no means clear what anybody could or would do about it.

  21. Stormy Dragon says:

    Interesting trivia: up until 1840, the census was carried out by the judicial branch. Specifically the marshal of each judicial district was responsible for organizing the enumeration in their particular district.

  22. Ken_L says:

    @Barry:

    In addition, if it was true, then the President is indeed a dictatorship.

    A dictator subject to dismissal by Congress. If Congress declines to fulfil its obligations, then America will be following a road to authoritarian governance well-trodden by other nations in history. See also: rule by emergency decree.

  23. Bob@Youngstown says:

    I am anticipating that a future American Community Survey – which enjoys the same force of law to be answered completely and truthfully – will feature the question ‘Are you in a same-sex marriage or relationship?’

  24. Just nutha ignint cracker says:

    @Ken_L:

    And it’s by no means clear what anybody could or would do about it.

    Well Congress could impeach,,, wait, never mind, I missed the “would” part on the first reading.

  25. Stormy Dragon says:

    @Bob@Youngstown:

    I am anticipating that a future American Community Survey – which enjoys the same force of law to be answered completely and truthfully – will feature the question ‘Are you in a same-sex marriage or relationship?’

    That’s already on the ACS. It was added in 2011.

    At the time, I said right here that it was a terrible idea to require people to report their sexual orientation to the government, but everyone down voted me for being paranoid.

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  26. Bob@Youngstown says:
  27. Just nutha ignint cracker says:

    @Stormy Dragon: Meh… being paranoid doesn’t mean they’re not out to get you, only that you may exaggerate the degree. (Or not, which is the rub, of course.)

    ETA: I don’t recall ever having been given that survey (ACS). Should I feel left out? (I’m guessing “no” BTW.)

  28. OzarkHillbilly says:

    @michael reynolds: I’m on board.

    @Steven L. Taylor:

    (Note how hard it is to just get people to turn out to vote).

    Voting means ignoring the lazy boy and the cold beer in the fridge and head down to the polls on a Tuesday afternoon after a long day of work for a thankless task in which one’s specific vote changes nothing.

    Ignoring the census means throwing away a form you really don’t want to fill out anyway.

  29. @OzarkHillbilly: The suggestion isn’t just about ignoring a form. It is about coordinated effort.

  30. Bob@Youngstown says:

    @Just nutha ignint cracker:

    The Census Bureau chose your address, not you personally, from a scientifically selected sample of addresses from a list of ALL the residential addresses in the country.

    note the absence of the word random.

  31. Just Another Ex-Republican says:

    All joking aside, could one of the lawyers here explain why the justification at this point can’t simply be “we need this information to draw partisan political borders in the states?” Not only does the evidence support that contention (so they don’t have to “deal with it” any other way), but how would it be inconsistent with the recent gerrymandering decision? I’m sure most of the courts won’t be amused that they are changing their justification, but can’t they simply point out that the Supreme Court changed the rules since they initially sued to add the question, so what they are really doing is now perfectly legal?

    IANAL, but I haven’t seen an explanation of why this would fail. The Supremes explicitly took partisan gerrymandering out of the federal court’s hands, while the Census question was decided on the basis that the government lied about their real reason for including the question (in my mind, because even this admin never dreamed the Supremes would be crazy enough to say partisan gerrymandering is a-ok). So why don’t they turn around and say “You caught us, the real reason is partisan gerrymandering and here’s the evidence why, but since gerrymandering is now outside the federal court’s jurisdiction we can add it.”

  32. Barry says:

    @James Joyner: “I’m reminded of the old show “Get Smart,” in which the protagonist frequently inquired, “Wouldja believe . . . ?””

    IIRC, there’s already such a situation. In one SCOTUS case, the court held that expressions of religious bias by a government official put the burden of proof (of religious discrimination) upon the government.

    In Korematstu II, SCOTUS upheld the Muslim Ban despite several hundred expressions of religious bias by the government official in question.