Trump still wants to add citizenship question, but faces renewed opposition
The clock is ticking and the Census Bureau is continuing to print without the question.
The Trump administration is still exploring ways to add a citizenship question to the 2020 decennial census, Justice Department lawyers told a federal judge in Maryland on Friday.
In a new filing, the DOJ promised U.S. District Judge George Hazel that he will be notified immediately if “the Commerce Department adopts a new rationale for including the citizenship question on the 2020 Decennial Census consistent with the decisions of the Supreme Court.”
The Supreme Court held last week that a citizenship question was legal, but said that Wilbur Ross, the commerce secretary, had not offered an honest rationale for adding it. The decision implied that the administration could still add the question if it provides a truthful justification.
Although time was short—the deadline to change the census was supposedly June 30—it was widely predicted that Secretary Ross would nevertheless present a new rationale. The administration had been litigating this case for more than a year and President Trump himself had taken a personal interest in the outcome.
But on Tuesday afternoon, the Justice and Commerce Departments defied expectations by announcing that they had abandoned the quest to include the question. Secretary Ross, who is a personal friend of President Trump, said that he had given the order to print the census without the question.
Then about 24 hours later, in a stunning development still not fully understood, the DOJ backtracked and told Judge Hazel it had been “instructed to examine whether there is a path forward…to include the citizenship question on the census.” Explaining the sudden reversal, media reports said that President Trump was displeased with the quick surrender and had been urged by prominent conservatives to continue the fight. (Perhaps he also felt that the white flag was a bit too French for his all-American 4th of July spectacular.)
Following the turnabout, Judge Hazel, who is overseeing a separate equal-protection challenge to the citizenship question, gave the DOJ until Friday to clarify its intentions. If the DOJ could not confirm by Friday that the question was out, Judge Hazel said that there would still be a live controversy warranting additional discovery. Two hours after the government told him it had not yet folded, Judge Hazel entered an order permitting the renewed discovery.
If that weren’t enough for the DOJ to contend with, there is action on a different front too. The ACLU is arguing to Judge Jesse Furman, in the Southern District of New York, that the government should be barred from modifying the 2020 census because it previously claimed that the deadline for doing so was June 30.
The Court should apply the doctrine of judicial estoppel to hold Defendants accountable for their repeated and unequivocal representations that the Census Bureau must finalize the 2020 Census questionnaire by the end of June 30, 2019, and to prohibit Defendants from concocting a new basis to add a citizenship question to this Decennial Census.
Judge Furman has scheduled oral argument on this issue for July 23.
Assuming the political appointees in the administration are genuinely invested in the question (we know the President is, but is he motivating anyone else?), they have not…handled this situation optimally, shall we say. They should not be sending mixed signals about their intentions. They should not have wasted the entire week following the Supreme Court’s decision. They should not be publicly advertising the fact that they are searching for a new rationale, since that might lend credence to inevitable, and potentially meritorious, accusations of pretext.
Whatever is going on backstage—and it is probably even wilder than the farce unfolding before the public—the administration has to get its act together now or this case is over, if it isn’t already. The clock is ticking and the Census Bureau is continuing to print the census without the question. At a certain point, it will simply be too late or too expensive to print with the question, no matter what rationale is presented and no matter how receptive to it the Supreme Court might be.
DONATE
Donations tax deductible
to the full extent allowed by law.
Comments
What does an Executive Order to place the question on the Census look like?
We now know that SCOTUS has confirmed the question is legitimate. The issue would be the manner in which the question is placed onto the document. Isn’t that a question of the APA?
We would then be asking if an EO can get around the APA?
Why not start a write in campaign? Those that choose not to write in will be considered non-citizens for the purpose of congressional number assignments.
What is “considered non-citizens for the purpose of congressional number assignments” supposed to mean? Citizenship is irrelevant to congressional apportionment. States get exactly the same number of congressmen regardless of how many or few citizens live there.
The Executive has a long history of authority to oversee the collection of census data – particularly a question that specifically regards representation in Congress.
The United States previously collected citizenship status from 1820 to 1950 on every census questionaire. There was no citizenship question for 1960. And from 1970 – 2000, the ‘long-form’ census asked about citizenship, yet the ‘short-form’ did not.
Plus, I have it on good authority that courts love them some precedents. No ‘searching for a new rationale’ required.
No politics here. No, Sir.
When I was a child in the 60s, there would have been little information gleaned from asking the question, because immigration had pretty much been stopped, and there were few unassimilated foreigners. I mean, really very very few.
Now, thanks to the lack of patriotism of our Congress and our federal courts, then and since, in passing all the permissions to foreigners to come legally, illegally, whatever, the information is of far greater importance.
Okay, I didn’t speak accurately. There were NO unassimilated foreigners, and no foreigners in any of my classes. Everyone spoke standard English, no exceptions. None.
In high school in the 70s, NO foreigners, much less unassimilated ones. I went to a very small government school.
In college in the 80s, there may have been one or two foreigners, but if so, they all spoke unaccented English.
The change has been shocking.
Okay, I have to correct myself again: At college at Emory, they had Asians teaching calculus who spoke heavily accented English, which explains why I never actually learned it.
You & I are similar in age. Back during the sixties, my family resided in a small, but rapidly expanding, middle class suburb of Kansas City. My best friend was a first generation American whose parents legally immigrated from Mexico. The family directly across the street were from Argentina. They had 2 very pretty daughters. Nice folks. The Dad was here on a work visa, and taught at the local university. I think there was one Black family on the street. Everyone seemed to get along.
The rest of the neighborhood was pure WASP. Everyone I knew had a mom at home, and a dad who worked. I can’t recall any divorced or single parents. At the edge of the suburb was our grade school, then farm fields as far as you could see.
Me and my buds would ride our bikes to school with our BB guns slung over our shoulder. Terry was the BMOC because he had a single-shot .22 rabbit gun. Upon arrival at school, we all headed to the principal’s office to stack our guns in his office for the day. When the last bell rung, we gathered them up to ride on out and kill pop bottles. “Good luck, boys” was all the principal would comment on our way out of school.
None of us ever shot at anyone. We were more scared of our fathers than any police officer.
Somewhere along the decades, all that unraveled….
This question doesn’t affect representation in Congress. And the issue here isn’t about the appropriateness of the question, it’s about an agency taking an action — any action — without having some rational reason for it. The reason the government offered would have been fine, had the evidence not been so overwhelming that it’s not the real reason.
The reviewing court shall—
(2) hold unlawful and set aside agency action, findings, and conclusions found to be—
(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;
I fail to understand what the problem is regarding a reason. We want to know how many people reside in the USA and of that how many of them are citizens? How complicated is this? Pretty damned simple to me. I also fail to understand why forms have to be printed in July 2019 for roll out in April 2020. You need 9 months to print some forms? Come on man, only on the government.
The states and organizations that challenged his decision claimed he had violated the Administrative Procedure Act, which requires an agency to explain the “basis” for a decision to the courts can decide whether it is “arbitrary and capricious.” A court cannot sustain agency action founded on a pretextual or sham justification that conceals the true ‘basis’ for the decision.
That is the reason they are looking at an Executive Order.
The question is it proper to use an Executive Order to circumvent the Administrative Procedures Act. If Trump does this he will be acting as Obama did the Obama Administration attempted to couch a new rule in terms of discretion of enforcement or “guidance.” For example, the “DREAM Act” by Executive declaration.
Gotta do what you gotta do.
Should the colonists have paid the stamp taxes in 1776?
Perhaps they should have, and we should accept having no weapons and being jailed for internet posts, and jailed for reporting on rape gangs in the would-have-been U.S.A. like Tommy Robinson.
Law-itis Strikes Again!
Gotta hand it to President Trump; he is doing everything he can to bring back Americans’ memory of their history and place in this world. It’s so refreshing to have a leader that without reservation LOVES America!
Either the act is legal or it is not. The effects are the same regardless of motivation, and its not the courts place to guess at what the motivations are of the executive branch. Down that road lays rule by black robes.
Let’s be honest. This standard will never be applied ever again to any other president. They will take whatever they are presented as motivation at face value like they always have even though we know leftist lie about every single thing they do. This is just Roberts showing his ass again because he is more emotional than a 13 year old girl having her first period. I am sick of it.
The Founders would be aghast that anyone would be stupid enough to think the court had the power to prevent the government from getting an accurate count of its citizens. It doesn’t, and I would be fine with Trump simply ignoring the court. And what’s more, Trump should run on impeaching Roberts and removing him from the bench. This is a winning issue, and a chance to clean up a mistake that was made when Roberts was appointed.
That is just not true. The law explicitly says otherwise.
That’s not true either. The same standard has been applied to every president. The courts treat agency decisions with extreme deference, but there has to be a point at which it’s blatantly obvious that the reason being offered is not the true reason, and the courts are required to strike down agency actions that are arbitrary and capricious.
Really? How do you know? Did the founders themselves ever bother to get such a count? Did any of the early censuses ask such a question? Getting a count of citizens would be a useful thing, and the government should have just forthrightly said so instead of hiding behind some unbelievable pretext of enforcing the VRA.
Last time I checked Article One of the U.S. Constitution also provides for the Congress to present a federal budget by a deadline. Printing concerns have failed for years to prompt Congress to pass a budget.
No, it doesn’t. I don’t believe you have ever bothered to read Article One, or any of the constitution.
Ok, so using the same standard then it should be fine for Trump to do this because precident already exists where Obana did the same thing WITHOUT ever being challenged by any of these same groups now up in arms.
No, he didn’t.
Some times (actually every time) government bureaucrats cannot see the forest for the poison ivy. Reason for the U.S. Citizenship question is…obtaining an accurate COUNT of the NUMBER of U.S. citizens.
Sherwood, thank you.
But why do you want that count? What use is it? The government implausibly says it would be useful for enforcing the VRA. It would have done much better to frankly say that this information would better inform all sorts of public political discussion, especially about immigration.
Use the liars’ paradox. Would you swear that you are a U.S. citizen if we asked you on this form?
Make lying on the census about citizenship a crime, punishable by immediate expulsion.
It’s already a crime. The penalty for lying is higher than the penalty for not responding by a factor of 5, in fact. I think $500 vs $100.
If you don’t want to answer some future long form some census, ask where to send the check if it comes to that, if they’re not overlooking it entirely.
If Roberts can prevent a legal act because he questions the motivations of a coequal branch then he really can’t complain if Trump ignores his ruling because he questions Roberts’ motivations.
The Supreme Court really needs to be embarrassed in a spectacular fashion like that to get them to behave. They would NEVER have dared to question Obama’s motivations about anything — including DACA where Obama explicitly said it would be illegal for him to do what he did before he did it.
I am really tired of the game being rigged, and of Roberts being the chief rigger. The guys needs to be removed from the bench. He is an embarrassment to the profession. And I will be incandescently pissed if they get away with having the question removed from the census. If that happens the only thing left in our power would be to have Republicans in blue states boycott the census to make up for the overcount in those states due to foreigners.
Exactly! This SCOTUS interference is simply judicial Caesarism, and they need to be pushed back in their proper lane.
Give Roberts the jake, add the question, and let the chips fall where they may.
How about simply printing forms that meet the constitutional requirement for an enumeration to be conducted then creating an addendum containing the proposed citizenship question along with all the other data questions? This course of action would:
1. Allow the census to proceed in 2020 as mandated
2. Align the incentives of all parties who want additional data.
In other words census, head count occurs but any other data questions come with the citizenship question attached. So if a particular state wants/needs say demographic data based on ethnicity to create/maintain congressional districts that are minority majority they will have to acquiesce to the citizenship question or do without the data via census.
The states who choose could gather whatever data points within their state for their own use. Some might use data to continue with apportionment based on ethnicity other states might base apportionment on numbers of citizens within their state. So while a national re-apportionment of the number of congressional districts between states would not be based on citizenship, the districts within a state could be redrawn based upon citizenship data.
Thoughts?
That would still be an agency action that needs to have some rational reason.
Since SCOTUS is concerned about divining the intent behind the inclusion of questions on Census removal of all questions other than enumeration is the obvious solution.
If challenged then the enumeration proceeds while the courts review the challenges. Unless a court is going to rule that the simple enumeration can’t proceed. That would provide the administration a clear and easy path to defy that ruling and insist on meeting the constitutional mandate of a head count every ten years.
Bottom line is there are multiple options for the administration most of which will be forcing the folks who challenged the inclusion of the citizenship question to regret it.
That would be an agency action too, and all agency actions must have rational reasons.
“The Supreme Court held last week that a citizenship question was legal, but said that Wilbur Ross, the commerce secretary, had not offered an honest rationale for adding it.”
Where does Roberts get off deciding the veracity of the Commerce Secretary justification?
The law requires the courts to make exactly that determination.
The federal courts are due for a tail feather clipping anyway. This is an opportune time to get it done. Federal courts can decide … or decide … not to decide …this case. Meanwhile the Census gets printed with the citizenship question included.
When you clip feathers, you clip one wing, usually so that it doesn’t show.
This is a hill to die on. Do it by EO. Just do it and don’t back down. Trump’s base wants this.
or too expensive to print with the question
Huh? this is the US government you’re talking about. Nothing is too expensive. Even better, nothing expensive can’t be made even more expensive after the government sics the bureaucracy on it.
From what limited knowledge I have, they don’t print three bazillion copies of the census and store them in a warehouse for weeks/months until they’re ready to mail. They print a few samples, get all the pages set up, make sure it all works correctly, gets all the data files stored and debugged… then when Census time comes, they print and mail them all at once. Those massive printers are *expensive* and it’s just easier to let the normal flow of print-mail-ship instead of print-print-store-store-digoutofwarehouse-ship.
Ththis is asinine, there is no sane interpretation of the constitution that supports Roberts pretzel of ‘the question is valid but I don’t like your reason’.
To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. The reviewing court shall—
(2) hold unlawful and set aside agency action, findings, and conclusions found to be—
(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;
Here’s something I don’t understand: If the DOJ and Commerce Dept are now telling the courts “we want to include this question and now we’re looking for a valid reason that you’ll accept”, aren’t they explicitly telling them that whichever reason they come up with won’t be the real reason? If they want to include the question now, they must have a reason, and that must be the real reason; whatever they come with will by definition be a pretext, so how could the courts accept it?
Obama unilaterally took the question out of the census. Trump can unilaterally put it back in.
No, he did not. Stop making up LIES.
“Furthermore, knowing the number of citizens in any district will help reduce voter fraud by providing a more complete picture of the eligible voters in a district. If there are, say, 300,000 U.S. citizens in a district, and 350,000 turn out to vote in an election, we’ll know there’s a problem. Put simply, it is likely the Obama administration’s failure to ask this question has harmed minority communities by making voter fraud harder to detect. The objections to the citizenship question assume it will decrease participation in Census Bureau surveys, but no such evidence exists. In fact, when President Obama removed the question in 2010, there was no sudden increase in reporting population.”
Read the last sentence….
https://thehill.com/opinion/immigration/380982-stop-ginning-up-hysteria-citizenship-question-on-census-is-nothing-new