President Trump Planning Some Kind of “Executive Action” on the Census: What Comes Next? Not Necessarily a Constitutional Crisis

I’m seeing a lot of hyperventilating on Twitter and elsewhere about how President Trump is about to start a constitutional crisis through an executive order that would mandate inclusion of the citizenship question on the census. If Trump actually ordered Commerce Department officials to do so, in the face of two court orders barring inclusion of the question, that would indeed be a constitutional crisis.

But the latest NYT reporting suggests Trump is not likely to go there:

Mr. Trump said on Twitter that he would hold an afternoon news conference on the issues of “census and citizenship” days after his attorney general, William P. Barr, suggested he thought there could be a legal path to placing the citizenship question on the census after the Supreme Court blocked its inclusion last month.
Mr. Trump may not issue an executive order on the citizenship question, according to aides briefed on the plan. Executive orders attempt to impose a sweeping unilateral change, as the president has done over 100 times during his presidency, setting up various legal entanglements.
One option, aides said, is a presidential memorandum that is essentially meant to put his administration’s view on the issue into writing. Mr. Trump has written over 40 memorandums since the beginning of his presidency to pursue policy changes on issues ranging from rural broadband internet access to the service of transgender people in the military.

If Trump goes this route, as the Times‘ article notes, it would still be subject to review by the courts. Here’s what I wrote on this last week in Gaming Out the Census Citizenship Question Endgame: What Comes Next, and How Will Things End?:

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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