Outside the Beltway

Trump To Take ‘Executive Action’ On Citizenship Question On Census

Later today, the President is expected to take some form of 'Executive Action' in an effort to get a citizenship question on the 2020 Census.

Doug Mataconis · Thursday, July 11, 2019 · 19 comments

Later today at the start of a news conference in the White House Rose Garden, President Trump is expected to announce some form of “executive action” to get a question regarding citizenship on the 2020 Census, a move that is likely to set up yet another round of lawsuits and laying the groundwork for what could become a Constitutional crisis:

WASHINGTON — President Trump is planning to take another step in his ongoing battle to place a question about citizenship on the 2020 census by announcing an executive action in the Rose Garden on Thursday, according to a senior administration official familiar with the decision.

Mr. Trump said on Twitter that he would hold an afternoon news conference on the issues of “census and citizenship” days after his attorney general, William P. Barr, suggested he thought there could be a legal path to placing the citizenship question on the census after the Supreme Court blocked its inclusion last month.

Mr. Trump may not issue an executive order on the citizenship question, according to aides briefed on the plan. Executive orders attempt to impose a sweeping unilateral change, as the president has done over 100 times during his presidency, setting up various legal entanglements.

[Barr says legal path to census citizenship question exists, but he gives no details.]

One option, aides said, is a presidential memorandum that is essentially meant to put his administration’s view on the issue into writing. Mr. Trump has written over 40 memorandums since the beginning of his presidency to pursue policy changes on issues ranging from rural broadband internet access to the service of transgender people in the military.

Whatever action Mr. Trump takes will be subject to review in the courts. Last week, Justice Department lawyers acknowledged that the administration remained subject to injunctions barring the addition of the citizenship question.

The administration will presumably have to file motions to lift those injunctions based on Mr. Trump’s action.

The new action will, in any event, almost certainly also give rise to direct legal challenges, and courts may be wary of accepting a new rationale for adding the question when the Supreme Court has already rejected the previous justification as contrived.

There is little doubt, in any event, that the case will again reach the Supreme Court. That case, against the backdrop of a chaotic litigation strategy and shifting legal arguments, will again test the limits of the court’s deference to executive power

More from The Washington Post:

President Trump on Thursday is expected to announce an executive action in a renewed bid to place a controversial citizenship question on the 2020 Census, according to two administration officials.

It remains unclear exactly what Trump will announce, including whether it will be an executive order or some other action that falls short of that move. The two administration officials who discussed his plans requested anonymity to speak ahead of an official announcement.

In a morning tweet, Trump said he would hold a news conference related to the census at the White House following a planned summit Thursday afternoon on social media.

“At its conclusion, we will all go to the beautiful Rose Garden for a News Conference on the Census and Citizenship,” he wrote.

The White House later said his announcement will take place at 5 p.m.

The Supreme Court has called the administration’s rationale for the question “contrived” and said the government could not go forward without a solid justification.

Speaking to reporters at the White House last week, Trump said the question was needed “for many reasons.”

He raised the possibility that some kind of addendum could be printed separately after further litigation of the issue.

“We’ll see what happens,” Trump said. “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.”

At a news conference on Thursday, House Speaker Nancy Pelosi (D-Calif.) noted the Trump administration remains subject to injunctions barring the addition of the citizenship question.

“The president’s effort to put the citizenship question on the census will continue to be challenged in court,” she said.

All of this started, of course, with the decision issued by the U.S. Supreme Court that largely upheld the ruling by a Federal District Court in New York City that barred the Administration from including the question on the Census. In its ruling, the Justices said that there might be some justification for including such a question. However, the Justices also agreed with the lower court that the explanation offered by the Administration for including the question was insufficient and not credible. As a result, the Justices remanded the case for further proceedings, leaving open the possibility that the question could be authorized if an alternative explanation were given. At the same time, though, the Federal Government had represented to both the Supreme Court and the lower courts handling challenges to the question that they required an answer on the outstanding legal issues no later than June 30th due to the fact that this was the “drop-dead date” for beginning the process of printing the Census forms that would be mailed out beginning early in 2020. At that point, it was unclear what direction the case would take since the government could choose to continue to try to justify including the question, or it could give up the fight.

Initially, it seemed as though the Federal Government had conceded the case and chosen the second option given the fact that it had informed the Federal District Courts still handling cases related to this issue that the government had begun the process of printing the Census form without the citizenship question. That position, though, lasted just under twenty-four hours due to the fact that President Trump had apparently ordered the Justice Department to find a way to include the question on the ballot. On Friday, the department made that clear in subsequent filings with the respective courts.

In the interim, there have been other developments in the cases in the two District Courts. First, Attorney General William Barr claimed that the Justice Department had found a way to include the question on the Census, but he did not explain what that is. Subsequently, the department has tried to change the legal team handling the two cases, only to see those efforts rebuffed first by one Federal Judge and then another. That brings us to today’s announcement, which the President is expected to make late this afternoon.

Since we don’t know the complete details of what the President will order, what authority he will invoke to justify it, or what form it will take, it is difficult to comment directly on the legality of his action. Speaking generally, though, it seems rather clear that what Trump is planning to do here is most likely not legally authorized and that it will most likely be legally blocked within hours or days after it is announced. For one thing, the government is already on record regarding the justification for the citizenship question. That justification has been rejected by both the District Court and the Supreme Court. Trying to change the justification now, whether it’s via “executive action” or some other means is going to be difficult to justify given the existing record.

In addition to having to somehow compete with the existing record at the District Court 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, this newly discovered evidence will be available to Plaintiffs in any cases filed in response to the President’s actions and in the pending litigation in Washington, D.C. and New York City.

Even before the President announced his news conference later today, Law Professor Bruce Ackerman noted in a Politico piece that provides a longish explanation of the history that has led to the current legal state of affairs vis a vis the Census that any “executive action” on this issue would be illegal:

The president could have tried to provide the courts with a more persuasive rationale in the days remaining before July 1, but after that date, any attempt to do so would directly thwart Congress’ constitutional authority to insist that the count proceed in an effective and expeditious fashion.He could no longer pretend that the Census was following the law if it changed the form it had created for public distribution. He could only assert, in a series of combative tweets, that he retained the unilateral power to impose the citizenship question by an executive order.

Trump can tweet what he likes, but his lawyers are obliged to confront the constitutional texts, and statutory commands, that represent two centuries of historical experience with the problem of reapportionment. Little wonder, then, that Trump tried to fire his entire legal team Monday morning when they confessed to the district judge, Jesse M. Furman, that they were unable to provide him with a rationale for unilateral presidential action that seemed remotely plausible, and that Furman has now rejectedTrump’s effort to replace them with a new legal team as “patently deficient.”

Given his track record of compliance with White House commands, Attorney General William Barr will undoubtedly ask the Supreme Court to reverse Furman’s decision, and give his new highly politicized team of lawyers a chance to rationalize Trump’s latest precedent-shattering assertion of unilateral authority.

I would rate his chances of success at zero. Since the chief justice has already rejected the bureau’s conduct as an “abuse of discretion,” it is impossible to believe that he will uphold the president’s direct intervention into a regulatory system that has profound roots in our constitutional tradition.

Roberts is rightfully concerned, however, with maintaining his court’s legitimacy in these polarized times. Since there were dissenters to his previous opinion, he may well try to avoid another show of disarray by persuading his colleagues to join him in a summary judgment, affirming Furman without the need for any elaborate opinion.

Regardless of his success on this front, Furman’s vindication will force Trump to ask himself a very big question. If he follows up on his threatened executive order, he will not only be defying the constitutional text, and two centuries of statutory practice. He will be in open defiance of the Supreme Court of the United States.

This represents the paradigmatic “high crime or misdemeanor” that served as the principal ground for the impeachment and near-conviction of Andrew Johnson during Reconstruction, and which has lurked in the background since Richard Nixon’s resignation during the Watergate scandal.

Politico legal affairs columnist Rocco Mariotti, meanwhile, warns that Trump could be putting the nation on a course toward a Constitutional crisis:

Trump might elect to issue an executive order, an idea he’s floated, but it wouldn’t help him. The issue is not whether his Commerce Department has the authority to add a citizenship question—it does—but whether the purpose behind doing so is lawful.

If the Commerce Department’s new rationale for adding the question is the executive order itself— i.e., simplythat Trump told them to add it—that would only result in a new inquiry into the exact same question ofTrump’s motives, one that would take months to resolve. Months that the administration does not have to spare if it is to meet that April deadline.

An executive order could just be a signal to Trump’s base that he fought on this issue before he eventually surrenders. But it’s also possible that he has no intention of claiming a symbolic victory,and wants to pursue a real one. So what if he simply ordered his Commerce Department to ignore court orders and press onward in violation of them, printing and distributing a census form that asked every American resident his or her citizenship status?

If that happens, we’ll have entered a dangerous moment.

One problem with our constitutional system is that courts cannot always enforce their rulings; they often need the cooperation of the executive branch. And they don’t always get it. More than a century ago, President Andrew Jackson is said to have scoffed that the chief justice of the Supreme Court had “made his decision; now let him enforce it!” Our system relies on the executive branch to enforce the laws, as President Dwight D. Eisenhower famously did in 1957 when he dispatched the 101st Airborne Division to enforce a desegregation order at Little Rock Central High School in Arkansas.

Perhaps Trump is planning on taking the Jacksonian path—just do it and dare anyone to stop him. The term “constitutional crisis” has been thrown about often during the Trump presidency, and not always appropriately, but a president who ignores the Supreme Court on an issue of extraordinary public concern would certainly qualify.

Is that where this is headed? I tend to doubt it. Trump likes to complain about the courts when they rightfully block his illegal actions, but he has never refused to comply or sought to ignore a Court order. Instead, he has used these Court setbacks to throw red meat to his supporters. That’s exactly what this seems like this will end up being. Trump and his advisers, most likely know that the proposed ‘executive action,’ whatever form it takes, will be immediately blocked by the courts currently handling cases the Census issue and by those that will have jurisdiction over future cases. They also likely know that the Census will most likely ultimately go forward without the citizenship question. What this action does is give Trump another means to pander to his base and to show them that “he fights” regardless of how meritless the fight actually is.

It’s possible, of course, that I’m wrong and that Trump will consider this Census issue a hill worth dying on. Perhaps he’d seek to defy any order from any Court on this issue. In that case, we really will have the Constitutional crisis that Mariotti warns us about. How our institutions and political parties respond in such a case will be crucial to determining what the future course of this country actually is.

Update: ABC News is reporting that the plan Trump will announce this afternoon stops short of trying to get a citizenship question on the Census:

President Donald Trump is expected to announce later Thursday he is backing down from his effort to include a citizenship question on the 2020 census, and will instead take executive action that instructs the Commerce Department to survey the American public on the question through other means, according to multiple sources familiar with the matter.

The expected announcement will bring to a close weeks of escalating confusion within the government over his demands that the controversial question be included despite a Supreme Court order that had blocked the move. The White House declined to comment about what exactly the president plans to announce.

As recently as Thursday morning, administration officials had been repeatedly suggested the president would take executive action calling for the question be added to the census. It was not immediately clear when and why the final decision was made not to move forward with that plan.

It’s unclear exactly what the Administration has in mind here, but I suppose we’ll find out this afternoon.