Gaming Out the Census Citizenship Question Endgame: What Comes Next, and How Will Things End?

I thought I’d pull together some thoughts on the issue of whether the Trump Administration will try again to add a citizenship question to the census, after sharing some earlier thoughts across this blog, to NPR, and at Slate.

The day the opinion came out I saw that Chief Justice Roberts left an opening for a do-over by the Trump Administration. Whether it is because Roberts changed his mind in the drafting process or not, Chief Justice Roberts’ opinion for the Court in Department of Commerce offers many more reasons why the government could include a citizenship question on the census than why it could not. The “could not” came down to the fact that it was undisputed that the reason Secretary Ross cave for including the question—to help bring Voting Rights Act claims to favor Hispanics—was a pretext. (No one who brings such cases needs citizenship data from the census, and the Trump Administration is bringing no such cases) And later released secret documents from the Hofeller files show that the real intent was to boost white, Republican voting power which would hurt Latinos. This pretext was too much for Roberts, joined in this part of his opinion by the liberal Justices. (The other conservative Justices were willing to simply ignore the pretext and accept the government’s unbelievable claims on face value.)

Many thought the Court’s ruling would be the end, because the government had represented all along that the printing needed to happen beginning July 1 (though the plaintiffs said it could happen as late as October, at a higher cost). The government appeared to concede the case was over, there were reports of the Trump cave, and a Trump tweet turned everything around. With pressure from people like the Federalist Society’s Leonard Leo, Trump is forcing his Justice Department to look for a new pretext for including the question. (His own tweets suggests he wants to know the number of non-legal residents, but the proposed census question does not ask about legality of residence, only citizenship.)

The DOJ lawyers are in a bind because they know that it can’t be just a pretext, and yet the President is ordering them to act. This puts them in an ethical dilemma, one which seemed to catch them off guard.

But assuming at least some political folks are willing to do Trump’s bidding, the government could indicate it is working on a new set of reasons for including the question. As Marty Lederman has suggested, it could be as simple as citing to footnote 1 in Justice Alito’s separate opinion in Department of Commerce: “As a 2016 Census Bureau guidance document explained, obtaining citizenship statistics is “essential for agencies and policy makers setting and evaluating immigration policies and laws, understanding how different immigrant groups are assimilated, and monitoring against discrimination.” The reasons could be in a statement from Secretary Ross, or an executive order from the President.

Some say the executive order could help things for the Administration, since the President is not subject to the Administrative Procedure Act and doesn’t have to offer reasons for his actions.

But the problem for the administration is that there are injunctions in place preventing the inclusion of the question, whether or not the APA applies. And if it still looks like the Administration is offering a pretext, I do not expect the lower courts to lift those injunctions. (There has even been talk of the Administration simply ignoring the courts, which would create a constitutional crisis.)

If the administration goes forward with the new reason, there will be a quick resolution of the equal protection claim in the Maryland Court. (This is the claim that the question was added with the intent to discriminate on the basis of race.) This is an issue the Supreme Court never decided, and would present an independent ground to block the question. And the lower court judge in the Department of Commerce case also would have to be convinced that any new reason is not a new pretext.

This means that if the Administration pushes the issue, it is going to be back before the Supreme Court, during the summer, with Justices scattered and new clerks in place. I said earlier that Chief Justice Roberts left a window open, but he left it open for a DOJ and Administration to act in a savvy way. These reversals and rule via tweet smack of amateur hour. This has got to be annoying Roberts, who is no doubt paying attention.

So it still all comes down to Roberts, if the administration wishes to push this hard. And I don’t know what Roberts will do, but the last two weeks have not helped the Administration’s case.

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