Breaking: DOJ Tells Federal Court It May Have New Rationale Later for Including the Census Question, Wants to Stop Discovery Now Because a New Decision Would Be Cleaned of Animus (Citing Travel Ban Case)

In a new filing, the Department of Justice has told the federal district court in Maryland considering whether the addition of the citizenship question on the census was done for reasons of racial animus that the government may still come forward with a reason for including the question. Further, the government argues that any new reason would have to be judged by its own terms, as the courts did in the travel ban case. It wants to stop all discovery of bad motives for the original decision as no longer relevant.

This is quite an act of political chutzpah. To begin with, one doesn’t start from a decision and then reserve engineer a rationale to support it. Either there is a reason for including the citizenship question or there is not.

Second, and more importantly, DOJ is arguing for what Joshua Matz has termed “animus cleansing.” Forget if we had discriminatory racial intent before in adding a question, DOJ argues, because any new decision would be fresh and pure. And because of this purity, there’s no need to look whether the government had discriminatory intent to start with. Presto! Nothing to see here court, please move on.

As I wrote earlier today, I don’t expect the lower courts to buy it. And I think this case is likely to proceed in the trial court on the question of discriminatory animus. If DOJ keeps pressing forward, this entire mess will be back in Chief Justice Roberts’ lap over the summer.

[This post has been updated.]

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