Trump Administration Flips Again On Citizenship Question As Lawyers Scramble For A Justification

Ken AshfordCourts/Law, Supreme Court, Trump & Administration, Voter Suppression & Voter SecurityLeave a Comment

The news Tuesday that the Trump Administration was giving up on adding a citizenship question to the census came as a surprise, it seems, to Trump, who tweeted a denial:

And Trump’s assertion that the news was “fake” cam as a surprise to the judge overseeing the case, who was told differently. Justice Department lawyers told United States District Judge George J. Hazel in a telephone conference that a decision to eliminate the question from census forms had been made “for once and for all.” Commerce Secretary Wilbur Ross, whose department oversees the Census Bureau, issued a separate statement accepting the outcome.

After seeing the tweet, Judge Hazel held a press conference with the parties. The transcript is bananas:

Judge Hazel opened the call by saying that Trump’s tweet had gotten his attention. “I don’t know how many federal judges have Twitter accounts, but I happen to be one of them, and I follow the president,” he said.

Joshua Gardner, a Justice Department special counsel for executive branch litigation, responded: “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.”

He added: “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.”

Mr. Gardner said that census forms would continue to be printed without the citizenship question, and that federal court rulings barring its inclusion, upheld in part by the Supreme Court, were still in force. But he added that he could not promise that would remain the case.

“This is a fluid situation and perhaps that might change,” he said, “but we’re just not there yet, and I can’t possibly predict at this juncture what exactly is going to happen.”

The judge had previously been told that the deadline for starting the printing of the census was June 30 — five days ago

At one point, a frustrated Judge Hazel said, “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. “

Judge Hazel gave the government lawyers until 2:00 today to come with a solution/reason.

Trump is not happy. The main target of his ire in those long phone calls? Commerce Secretary Wilbur Ross, according to the Washington Post. Trump reportedly thinks his Justice Department and Commerce Department backed down too easily and privately believes that Supreme Court Chief Justice John Roberts is out to get him.

Trump continued his phone calls on the Fourth of July, complaining to aides and friends about Ross. He reportedly told advisers that he intends to make the citizenship question issue the Trump administration’s top priority in the next several days.

“Fix this,” Trump has repeatedly told aides.

Administration lawyers are exploring various legal options. A senior legal source said: “The administration is considering the appropriateness of an executive order that would address the constitutional need for the citizenship question to be included in the 2020 census.”

Former federal judge J. Michael Luttig, who has longtime ties to officials in the administration, has said “If the president of the United States were to issue an executive order, supported by his full Article II powers, directing that the citizenship question be included in the 2020 census, I believe the Supreme Court would affirm the constitutional power of the president to include the citizenship question in the census.”

I doubt that. The Constitution requires a census to be taken. That appears in Article I. It is a legislative power.

Indeed, the Census Bureau’s website confirms this “The U.S. Constitution empowers the Congress to carry out the census in ‘such manner as they shall by Law direct’ (Article I, Section 2).” (link:

Also, the issue is not whether the President (or Commerce Secretary) has the right to add a citizenship question, per the Supreme Court’s Department of Commerce decision last week. The issue instead is whether there is a good enough reason for including the question that is not a pretext.

It seems stronger for that reason to come from the Commerce Secretary and the Census Bureau than declared in an executive order.

While the Supreme Court did not say that including a citizenship question was per se impermissible, it did say that the administration’s official rationale (enforcing the Voting Rights Act) “seems to have been contrived”:

We are presented, in other words, with an explanation for agency action that is incongruent with what the record reveals about the agency’s priorities and decisionmaking process. It is rare to review a record as extensive as the one before us when evaluating informal agency action—and it should be. But having done so for the sufficient reasons we have explained, we cannot ignore the disconnect between the decision made and the explanation given.

The high court determined that the lower court’s blocking of the question was warranted, and sent the question back to the Department of Commerce so it could come up with a new rationale.

Still, the Trump Administration might try it. If they fail, they could shift blame to Supreme Court Chief Justice John Roberts, said a person “familiar with some of the administration’s internal deliberations.”

UPDATE: 10:44 am —

Can you come up with a rational post hoc? Will that fly with the court? Isn’t that arbitrary and capricious? Have studies been done on the impact of the question?

UPDATE: 10:59 am —

Um… I don’t see, from a practical standpoint, how an addendum could be added later. BEFORE mailing the census? Sure, I suppose. I suppose it will be ignored, too.

UPDATE — 1:20 pm —

It was a gift to let the Trump Administration have a second bite at the apple. Now they get to lose twice.

UPDATE — 2:10 pm — DOJ filed a brief regarding the discovery schedule, saying that it was premature. ” “Any new decision by the Department of Commerce on remand providing a new rationale for reinstating a citizenship question on the census will constitute a new final agency action, and Plaintiffs will be fully entitled to challenge that decision at that time.”

But we still don’t know the new rationale or if there will be one.

So they are re-evaluating? And how does this square with their expedited appeal to the US Supreme Court which talked about the June 30 deadline? One more time, this is the same Justice Department that insisted to the Supreme Court, on at least five occasions, that there was no way to push final resolution of this dispute past June 30—and used that claim as its sole basis for seeking and receiving expedited review from the Court. Were they lying about THAT too?