On Tuesday, it appeared that the Trump administration had given up on its quest to insert a citizenship question into the 2020 census. Both the Justice Department and the Commerce Department, which oversees the census, seemed to acknowledge that the Supreme Court had ended the fight by blocking the question. The next day, however, Trump tweeted that the government was “absolutely moving forward” with the question—directly contradicting statements that DOJ attorneys had just made in court. His tweet sent these lawyers scrambling over the July Fourth holiday to devise a new lie that might render the citizenship question lawful.
We’ll know more about that lie on Friday at 2 p.m., when DOJ attorneys must tell a federal judge their plan moving forward. In the meantime, though, several outlets have reported on the mad dash to salvage the question—indicating that the administration’s latest lie may be even less convincing and more blatant than the first.
Recall that, previously, Commerce Secretary Wilbur Ross insisted that the citizenship question must be added to help the DOJ enforce the Voting Rights Act. That explanation never made any sense and was contradicted by a mountain of evidence proving that it was pure pretext. For that reason, Chief Justice John Roberts ruled against the question, holding that it was unlawfully “contrived” and “more of a distraction” than a “genuine … explanation.” The task for the administration, then, is to formulate another explanation that is somehow not contrived—and to do it quickly, because the government has already started printing census forms, and reinserting the question at this late date will be increasingly costly.
So, how’s that going? From the Washington Post:
As they deliberated options Thursday, [DOJ] lawyers were pessimistic about their chances, according to people familiar with the matter … Trump has talked of issuing an executive order to the Commerce Department to try to forge a new legal avenue for the citizenship question, having picked up that idea from conservative allies, according to a senior administration official.
Those allies include conservative talk show host Hugh Hewitt, former federal judge (and current Boeing executive) J. Michael Luttig, and Republican attorney David B. Rivkin Jr., who served in various legal positions throughout the Reagan and George H.W. Bush administrations. These men have urged Trump to issue an executive order directing Ross to add the citizenship question pursuant to, as Luttig put it, “his full Article II powers.”
There is a major problem with this plan. If you read the Constitution, you will discover that it assigns control over the census to Congress, not the president. There are no “Article II powers” that allow the executive to add questions to the census, contrary to Luttig’s suggestion. The notion that Trump could unilaterally mandate a citizenship question, drawing exclusively on his executive authority, is pure fantasy.
It is true, though, that Congress has delegated certain census powers to the Secretary of Commerce. Specifically, it has allowed the secretary to alter the census, so long as he complies with federal guidelines—including a requirement that he “disclose the basis” of his actions. (The real basis, not some post hoc fabrication.) A less absurd version of Luttig’s scheme, then, would have Trump tell Ross to devise a new reason for the citizenship question, then go through the process of adding the question in accordance with federal law.
Yet this tactic, too, would be legally suspect, for two reasons. First, it’s unclear if the administration could cook up a better reason for the citizenship question. Justice Samuel Alito helpfully provided a few in his dissent, citing the Census Bureau’s need for “setting and evaluating immigration policies and laws, understanding how different immigrant groups are assimilated, and monitoring against discrimination.” Rivkin contributed another in a Wall Street Journal op-ed co-authored with Gilson B. Gray: He cited a section of the 14th Amendment that declares that if a state engages in unlawful disenfranchisement, its seats in the House of Representatives “shall be reduced” using a formula that counts citizens, not persons. (Rivkin and Gray did not mention that the president has no independent power to enforce the 14th Amendment.)
Whatever the merits of these justifications, everyone agrees that they are not the actual reason the Trump administration first added a citizenship question. (The real reason is that it would provoke an undercount of Hispanics and Latinos, thereby diminishing their representation in Congress and state legislatures.) And if Ross’ first justification was unlawfully “contrived,” wouldn’t these be, too? After all, they have been openly contrived after the fact to shore up the question’s legality. Ross’ endeavor is already tainted by duplicity; could another pretextual justification somehow cleanse that taint? It is difficult to see how Roberts, having already shot down the question for lacking “genuine justifications,” would turn around and uphold it on the basis of new, equally disingenuous justifications.
Second, the administration probably doesn’t have time to start this process anew. Under the Administrative Procedure Act, Ross would have to build a new record providing his improved reasons for the citizenship question. He would likely have to go through a notice and comment period, too, which could take months. Yet the administration has repeatedly told the courts that it had to finalize the census forms by June 30, and it has already begun printing them without a citizenship question. With each passing day, modifying the census becomes more costly and difficult. Moreover, several injunctions remain in place, blocking Ross from taking the necessary steps to reinsert the question.
As University of California–Irvine law professor and Slate contributor Rick Hasen has pointed out, this clown show will not help the administration win over Roberts. These “reversals and rule via tweet” do, indeed, “smack of amateur hour,” making it even more difficult for the chief justice to permit the citizenship question without humiliating himself and his court. It is theoretically possible that the Trump administration could still rig the census. But so far, its efforts have only bolstered the case against the citizenship question’s legality.