The Justice and Commerce Departments announced Tuesday afternoon that, in light of the Supreme Court’s decision last week in Department of Commerce v. New York, the Trump administration had abandoned its quest to add a citizenship question to the 2020 decennial census.
The surrender came as something of a shock. The Supreme Court explicitly said that the citizenship question was legal and that the only problem was the contrived reason offered for it. Given President Trump’s focus on the case, legal commentators were expecting the administration to quickly present a new rationale and have the Census Bureau work furiously to make up for the lost time. (The census questionnaire was supposed to be finalized by July 1.)
Nevertheless, the decision seemed final. Commerce Secretary Wilbur Ross, who is a personal friend of President Trump, and whose department oversees the Census Bureau, said he had started printing the questionnaires without the question. A trial attorney at the DOJ emailed the plaintiffs and told them the census would not have a citizenship question. Pressed by a federal judge in Maryland, DOJ lawyers declared that it was over.
But it was not over.
Like a general unaware his troops had deserted him, the President tweeted yesterday morning that the fight was continuing.
It wasn’t clear until yesterday afternoon, though, that the tweets actually had a connection to reality.
The Maryland judge, George J. Hazel, apparently follows the President on Twitter and, upon seeing the tweets, called for a status conference to figure out the government’s actual position.
At the conference, which was held by telephone at 3:30 p.m. on Wednesday, the DOJ reversed itself. Assistant Attorney General Joseph Hunt told Judge 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.
In a letter to the judge in the New York case, the DOJ confirmed that it is exploring ways to re-add the question. But whether or not that happens, the government is beginning to print questionnaires without the question, the DOJ said.
On July 2, 2019, counsel for Defendants sent an email communication to counsel for Plaintiffs confirming that the questionnaire for the 2020 Decennial Census had been sent to the printer, without a question inquiring about respondents’ citizenship status, and that the process of printing the questionnaires had started. ECF No. 610-3. That representation was based on the information undersigned counsel had at the time, and it remains undersigned counsel’s understanding that the process of printing the questionnaires, without the citizenship question, continues.The Departments of Justice and Commerce have now been asked to reevaluate all available options following the Supreme Court’s decision and whether the Supreme Court’s decision would allow for a new decision to include the citizenship question on the 2020 Decennial Census. The agencies are currently performing the analysis requested, and, if they determine that the Supreme Court’s decision does allow any path for including such a decision, DOJ may file a motion with the Supreme Court seeking further procedural guidance for expediting litigation on remand.
The New York Times reports that President Trump is “focused on finding a way to add a question to the census,” apparently telling aides that, ultimately, this “might mean tacking on a question after census questionnaires had been printed.”
The Washington Post, meanwhile, has supposed inside gossip about the abrupt reversal. The basic thesis of the Post story is that there is virtually no chance the question will be added and the lawyers are just humoring the President.
According to the Post, the DOJ concluded soon after the Supreme Court’s decision that the question could not be added. “That is because the deadline to print was just days away, and officials knew there would not be time to successfully push for some other outcome,” the Post explains. President Trump pressed his lawyers to fight anyway, but the DOJ, backed by A.G. Barr, said it could not.
Some time after, Commerce announced that it was printing the census without the question. But then, “at some point between Tuesday evening and Wednesday morning…the landscape shifted dramatically,” in part because of President Trump’s tweets around that time. The story doesn’t explain what exactly caused the DOJ to backtrack. President Trump tweeted about the census case last week and the DOJ was apparently unmoved.
If there is truly no way to add the question, we should know it soon. Judge Hazel told the government that it has until Friday to decide whether it wants to keep litigating the case.
But for the time being, the reversal appears to have interrupted some celebrations.
(Live shot of President Trump to the plaintiffs)
The question probably won’t be included, but with so many uncertainties, the situation will continue to bounce around like a roulette ball in a wheel at the Trump Taj Mahal. Of course, this isn’t one of President Trump’s casinos—but come to think of it, that actually improves his chances of coming out on top.
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