Despite an embarrassing loss before the United States Supreme Court two weeks ago, the Trump administration has decided to press its case to add a citizenship question to the 2020 census. Attorney General Bill Barr promises to reveal a “pathway” forward this week, although what the administration’s new argument might be is unclear. Yet the Administration has backed itself into a corner, effectively foreclosing a legal path forward. If Trump wants that question on the census, that “pathway” might not end up running through the courts, but around them.
Anyone who followed the long saga of Trump’s travel ban—which courts initially blocked before the Supreme Court upheld a revised version—knows courts are very deferential to the federal government’s stated purpose for policy changes. But they’re also willing to say “stop” if the government turns out to be lying about its motives.
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In the case of the Census, the White House claimed that it wanted to add a citizenship question to help enforce the Voting Rights Act on behalf of minorities. However, the paper trail created by the administration was so damning—the Commerce Department did not raise the Voting Rights Act or contact the Justice Department until well after it began work to add the question—that the Supreme Court simply could not accept that the Department of Justice was telling the truth about its stated purpose. Chief Justice John Roberts called the government’s reasoning “contrived,” and refused to allow the administration to go forward.
This could have—and should have—ended the matter. But after a series of tweets from Trump bashing the decision, the Department of Justice tried to bring a new team of lawyers to reboot its legal strategy, presumably because the prior team was unwilling to make what could be disingenuous arguments, or because they would need to contradict their prior statements to the court to do so. But the judge on Tuesday said he would not allow them to do so unless they file affidavits stating the reason why they were withdrawing.
Regardless of which lawyers handle the case, they will need to overcome the ample evidence that the true purpose of adding the question is to give Republicans a structural advantage going forward. “You need it for Congress for districting,” Trump himself said recently, a reference to the idea that the point of the Census changes would be to conduct redistricting based on citizens instead of total persons—a change to the current way House districts and electoral votes are currently divvied out. You don’t need to be a statistician to see that this would give Republicans a major structural advantage at the ballot box for years to come.
Perhaps the most damning evidence arrived late in the proceedings, when one of the groups that is suing the Trump Administration recently obtained documents indicating that Republican redistricting expert Thomas Hofeller was significantly involved in the addition of the citizenship question to the census. Hofeller, who died in August 2018, used data from the Texas House of Representatives to show how drawing district lines based on citizens would allow Republicans to lower the representation of Democrats and Latinos; the results, he concluded, “would be advantageous to Republicans and Non-Hispanic Whites.” Adding a citizenship question to create an advantage for “Non-Hispanic Whites” would not just contradict the administration’s claims, it would overtly violate the Equal Protection Clause of the Constitution, which prohibits the government from discriminating on the basis of race, ethnicity or national origin.
Pushing this issue forward will likely invite a fresh round of lawsuits, which could be a disaster for the administration. But the clock is what’s really working against them.
The Constitution states that the census must be conducted every 10 years, and federal law mandates that the next census shall begin on April 1, 2020. For that reason, the administration repeatedly told the Supreme Court that the census case had to receive greatly expedited treatment because “the questions presented must be resolved before the end of June 2019, so that the decennial census questionnaires can be printed on time for the 2020 census.”
It’s hard to see how any court would conduct another review quickly enough to meet that printing deadline so that censustakers could deploy by April, given that ongoing litigation will take months even if it is expedited. Perhaps the printing deadline was inaccurate, which could create additional problems for the administration, given its many statements to courts stating that it was correct. Regardless of the exact printing deadline, time is short, and any delay would be both unconstitutional and would violate federal law.
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., simply that Trump told them to add it—that would only result in a new inquiry into the exact same question of Trump’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 their 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 own rulings; they often need the cooperation of the executive branch. And they don’t always get it. Over a century ago, President Andrew Jackson is said to have scoffed that while 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 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 United States Supreme Court on an issue of extraordinary public concern would certainly qualify.