Trump’s Apparent Decision to Drop the Citizenship Question Is the Biggest Legal Defeat of His Presidency

Supreme Court Justices John Roberts, Elena Kagan, and Neil Gorsuch greet President Donald Trump after the State of the Union address on Feb. 5 in Washington.
Supreme Court Justices John Roberts, Elena Kagan, and Neil Gorsuch greet President Donald Trump after the State of the Union address on Feb. 5 in Washington. Alex Wong/Getty Images

On Thursday, after a 15-month legal battle, officials from the Department of Justice informed opposing counsel in the census case that the Trump administration would be printing the census without a controversial question about respondents’ citizenship.

“We can confirm that the decision has been made to print the 2020 Decennial Census questionnaire without a citizenship question, and that the printer has been instructed to begin the printing process,” DOJ attorney Kate Bailey informed opposing counsel in the census litigation.

The decision to print the census without the question—which the Census Bureau’s own analysts determined would lead to the undercounting of large numbers of Hispanic residents—appears to bring an end to the saga over the citizenship question. Last week, the U.S. Supreme Court rejected the Trump administration’s argument that they needed the citizenship information to properly enforce the Voting Rights Act (the administration has not brought a single one of these cases). Chief Justice John Roberts wrote the opinion, joining the court’s more liberal members in a 5–4 decision.

The email comes just hours after the president told reporters he was still considering delaying the printing of the census in order to offer the Supreme Court a new explanation for why his Commerce Department sought to add the question, after the court ruled last week that the original explanation was “contrived” to defeat a court challenge but left open the possibility that it would accept a different explanation.

Commerce Secretary Wilbur Ross issued a statement registering his disappointment with the Supreme Court ruling while confirming the decision to print.

Daily Beast editor Justin Miller reported that the decision to print did not necessarily mean that the case was over and that DOJ officials would not confirm that they would drop litigation seeking to add the question, presumably in some second, later printing.

UC–Irvine School of Law professor and elections expert Richard L. Hasen, though, said that he at long last felt the case would be over. (Full disclosure: Hasen is also a Slate contributor.)

“While it is theoretically possible that Trump would later try to delay the process and reprint the census forms, this seems unlikely at this point,” Hasen told Slate. “This was the moment for Trump to act, with the clock ticking.”

If the case is truly over, it would be one of the biggest legal defeats of the Trump presidency.

Before the Supreme Court’s ruling came out, lawyers opposing the question surfaced another explanation for the inclusion of the question that had little to do with enforcing the Voting Rights Act. That explanation came in a memo found in a trove of computer files from a deceased GOP political operative. Per the memo, a citizenship question would allow future redistricting that would be “a disadvantage to the Democrats” and “advantageous to Republicans and non-Hispanic Whites.”

The trial courts that decided the case initially ruled that there was not sufficient evidence to demonstrate an Equal Protection Clause violation, but that aspect of the case was reopened two weeks ago, when the Court of Appeals for the 4th Circuit said that a district judge in Maryland could revisit the question with new evidence. Roberts had sent the case back to the Commerce Department to come up with a new, non-pretextual reasoning before the printing, but it appears as though there just wasn’t enough time to fight the new equal protection arguments in lower courts and come up with a new explanation that would ultimately satisfy Roberts. In addition to facing the renewed equal protection clause case in Maryland, the Department of Justice had consistently argued that a decision in the case was necessary by June 30 because administration officials needed to begin the process of printing the census forms on July 1. If the Trump administration returned to court offering little more than “JK-LOL,” it’s not clear how well that argument would have played given all of the other flaws in the case.

Still, after the Roberts opinion, Trump was suggesting that he would continue to fight the case. Shortly after the ruling, Trump tweeted that he “asked the lawyers if they can delay the Census, no matter how long, until the United States Supreme Court is given additional information from which it can make a final and decisive decision on this very critical matter.”

As late as Monday, Trump was still saying that he would be continuing the fight, offering yet another justification for why the question was added.

“I think it’s very important to find out if somebody is a citizen as opposed to an illegal,” he said. “I think there’s a big difference, to me, between being a citizen of the United States and being an illegal.” The purpose of the census, as described in the Constitution, is for a full enumeration of the entire population, and it cannot be legally used for any other purpose—including to take action against undocumented immigrants—so it’s unclear that this reason would have held up.

As they wait for Trump himself to weigh in on this defeat, civil rights attorneys are celebrating.

“In light of the Supreme Court’s ruling, the government had no choice but to proceed with printing the 2020 census forms without a citizenship question,” attorney Dale Ho of the American Civil Liberties Union said in a statement. “Everyone in America counts in the census, and today’s decision means we all will.”