The Department of Justice told a pair of federal courts on Wednesday that it will try to find a new way to place a citizenship question on the 2020 census, just one day after it declared in court that it would no longer seek to do precisely that.
Justice Department attorneys and Commerce Secretary Wilbur Ross, who oversees the census, announced on Tuesday that they had given up their quest to insert the citizenship question. They felt that the Supreme Court’s decision blocking the question left them no viable path forward, since the government maintained that it had to finalize the forms by June 30. On Wednesday morning, however, President Donald Trump tweeted that “News Reports” noting the administration’s concession of defeat were “FAKE.” “We are absolutely moving forward,” Trump wrote, “as we must, because of the importance of the answer to this question.”
This reversal left DOJ lawyers in a bind. One day earlier, they had told U.S. District Judge George Hazel that they had made the “final” decision not to include a citizenship question. This concession was meant to forestall further discovery in the renewed equal protection case against the census question. Now, suddenly, the president had claimed the contrary—forcing these attorneys to return to court and say, “never mind.”
In a frazzled hearing on Wednesday, DOJ attorney Joshua Gardner practically begged Hazel not to accuse him of misleading the court. “What I told the court yesterday was absolutely my best understanding of the state of affairs,” Gardner said. “The tweet this morning was the first I had heard of the President’s position on this issue, just like the plaintiffs and Your Honor. I do not have a deeper understanding of what that means at this juncture other than what the President has tweeted. But, obviously, as you can imagine, I am doing my absolute best to figure out what’s going on.”
Joseph Hunt, another DOJ attorney, then told Hazel:
We at the Department of Justice have been instructed to examine whether there is a path forward, consistent with the Supreme Court’s decision, that would allow us to include the citizenship question on the census. We think there may be a legally available path under the Supreme Court’s decision. We’re examining that, looking at near-term options to see whether that’s viable and possible.
Hunt added that “our current plan would be to file a motion in the Supreme Court to request instructions on remand to govern further proceedings in order to simplify and expedite the remaining litigation and provide clarity to the process going forward.”
This situation is a clown show, and a jaw-dropping embarrassment for the Department of Justice. It is pretty clear what happened here: Ross and the DOJ concluded that they could not get around the Supreme Court’s ruling and salvage the citizenship question. Trump, unhappy with that outcome, simply tweeted that he still wanted his administration to pursue the question, sending lawyers scrambling to take back their comments on Tuesday.
Hazel appeared to recognize this disconnect between the DOJ and the president, telling Gardner:
I’ve been told different things, and it’s becoming increasingly frustrating. If you were Facebook and an attorney for Facebook told me one thing, and then I read a press release from Mark Zuckerberg telling me something else, I would be demanding that Mark Zuckerberg appear in court with you the next time because I would be saying I don’t think you speak for your client anymore.
It’s unlikely that Hazel will drag Trump into court any time soon, but he’s certainly in a predicament. The judge cannot really trust DOJ lawyers—not because they are lying, but because they cannot be sure, at any given moment, what the government’s position actually is. Hazel set another deadline for Friday at 2 p.m., demanding one of two things: Either a stipulation that there will be no citizenship question on the census, or a scheduling order for the case moving forward. (He is currently adjudicating a claim that the census was altered with discriminatory animus in violation of equal protection.)
In a separate filing to U.S. District Judge Jesse Furman on Wednesday, the DOJ confirmed that it is “reevaluat[ing] all available options.” What happens next? Chief Justice John Roberts’ opinion blocking the question found that Ross’ explanation for its inclusion—that it would help to enforce the Voting Rights Act—was “pretextual” and “contrived.” Somehow, then, the Commerce Department will have to concoct a new and improved reason for adding the question, and convince the courts that it is telling the truth. And it will have to do so extremely fast, since it should have already finalized the forms. The filing to Furman essentially acknowledged this predicament, stating: “In the event that the Commerce Department adopts a new rationale for including the citizenship question on the 2020 Decennial Census consistent with the decision of the Supreme Court, the Government will immediately notify this Court so that it can determine whether there is any need for further proceedings or relief.”
That task will be difficult, to say the least. This entire endeavor is already tainted by duplicity, and it will be tough for lawyers to somehow cleanse that taint by devising a new, legitimate justification for the citizenship question. (Trump certainly isn’t making it any easier; he said on Monday that he favors the question because “I think it’s very important to find out if somebody is a citizen as opposed to an illegal.”) If Roberts found the initial reason unlawfully “contrived,” how could he decide that a new reason—openly contrived to satisfy the president— passes legal muster? It’s difficult to see how Roberts, having already refused to debase his court by pretending to believe the administration’s lies, would turn around and embrace even more blatant lies. But Trump officials are apparently willing to test his resolve.
This entire charade is a profound humiliation for the Department of Justice. In their various statements on Wednesday, DOJ attorneys took pains to explain that they are merely taking orders—presumably from Attorney General William Barr, who is happy to use his agency to further Trump’s partisan goals. They sounded ashamed, and for good reason. These lawyers have disgraced themselves in an effort to pacify the president and his sycophants. This circus would be funny if American democracy weren’t at stake.