Will the 2020 census ask U.S. residents about their legal status? The answer so far has been yes, no, yes, no, and now yes again. That bewildering zigzag is partly due to litigation challenging the citizenship question but mostly due to Commerce Secretary Wilbur Ross’s blatant dishonesty and the Trump administration’s chaotic decision making.
Last week the Supreme Court ruled that Ross’s “contrived” rationale for reinstating the citizenship question—that the Justice Department needed better data to enforce the Voting Rights Act—will not do. “In order to permit meaningful judicial review, an agency must ‘disclose the basis’ of its action,” Chief Justice John Roberts said in the majority opinion. “The reasoned explanation requirement of administrative law…is meant to ensure that agencies offer genuine justifications for important decisions, reasons that can be scrutinized by courts and the interested public. Accepting contrived reasons would defeat the purpose of the enterprise. If judicial review is to be more than an empty ritual, it must demand something better than the explanation offered for the action taken in this case.”
Reacting to that decision on the day it was handed down, Trump said it “seems totally ridiculous that our government, and indeed Country, cannot ask a basic question of Citizenship.” He added that he had “asked the lawyers if they can delay the Census, no matter how long, until the United States Supreme Court is given additional information from which it can make a final and decisive decision on this very critical matter.”
Notwithstanding that directive, the Justice Department on Tuesday said the administration had decided to drop the citizenship question and had begun printing census forms without it. The Census Bureau, which is part of the Commerce Department, had always maintained that it needed to start printing forms by July 1 in order to keep the census on schedule. Ross confirmed that “the Census Bureau has started the process of printing the decennial questionnaires without the question.”
But then Trump tweeted again, that same day, about the importance of including the citizenship question. “I have asked the Department of Commerce and the Department of Justice to do whatever is necessary to bring this most vital of questions, and this very important case, to a successful conclusion. USA! USA! USA!”
That comment led to a surreal exchange during a teleconference on Wednesday between DOJ lawyer Joshua Gardner and U.S. District Judge George Hazel, who is hearing one of the lawsuits challenging the citizenship question. “I don’t know how many federal judges have Twitter accounts, but I happen to be one of them, and I follow the President, and so I saw a tweet that directly contradicted the position that Mr. Gardner had shared with me yesterday….I’m going to ask, frankly, the same question I asked yesterday to Mr. Gardner. Is the Government going to continue efforts to place a citizenship question on the 2020 census?”
Gardner’s response highlighted the difficulties of dealing with an administration where the president frequently seems to be at odds with his subordinates and one hand does not know what the other is doing. “What I told the Court yesterday was absolutely my best understanding of the state of affairs and, apparently, also the Commerce Department’s state of affairs, because you probably saw Secretary Ross issued a statement very similar to what I told the Court,” he said. “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. 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.”
So is everyone else. “The Supreme Court ruled that it is legal to have a citizenship question in the census if there’s an appropriate explanation—and it should come as no surprise President Trump is looking at every option within his legal authority to add such a question,” White House spokesman Hogan Gidley said yesterday. Except that it clearly did come as a surprise to the Commerce Department and the DOJ lawyers who supposedly were exploring the president’s options.
“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,” a “senior legal source” told Axios yesterday. That phrasing suggests the leading contender for “an appropriate explanation” is an argument that South Texas College of Law professor Josh Blackman floated in April.
The 14th Amendment, Blackman noted, says “representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state, excluding Indians not taxed.” But it adds that when a state disenfranchises residents who otherwise would be qualified to vote in federal elections (at the time, male citizens 21 or older), “the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such state.” In order to impose that penalty, the federal government has to know how many male citizens live in the offending state, meaning that a citizenship question arguably is constitutionally required as part of the census. Presumably that is what the “senior legal source” quoted by Axios had in mind when he referred to “the constitutional need for the citizenship question.”
The Commerce Department, of course, could have offered that argument—or any other halfway plausible, nonpartisan explanation, although probably something better than “USA! USA! USA!”—from the beginning, in which case the Supreme Court almost certainly would have approved the citizenship question. The Court noted that the commerce secretary has wide discretion to decide what’s asked in the census and that review under the Administrative Procedure Act is “deferential.” It told the Commerce Department to try again only because the administrative record showed that Ross had decided to add the citizenship question “about a week into his tenure” for reasons he has never revealed (but which may have had something to do with disadvantaging Democrats by suppressing responses from households that include unauthorized residents) and then spent months trying to get another agency to provide a post facto rationale for a decision he had already made. If Ross had been more honest—or even if he had been better at being dishonest—census forms including the citizenship question would be rolling off the presses right now.
While it’s clear that Ross is a bad liar, it’s harder to know what to make of the administration’s double reversal on its plans regarding the citizenship question in the space of a week. Assuming that the Justice Department consulted with the president before announcing that it was throwing in the towel, we can attribute the jarring changes in course to Trump’s mercurial nature. But if the DOJ and the Commerce Department made the decision on their own (hoping Trump wouldn’t notice?), that suggests even deeper problems. Given that the DOJ seemed to ignore Trump’s June 27 directive, and in light of all the other times that administration officials have defied the president, that explanation cannot be dismissed out of hand.
If the officials who were ready to give up had been smart, they would have printed dummy census forms that included the citizenship question, shown them to Trump, and assured him that all was proceeding as planned. If Trump happened to see press reports to the contrary, they could have dismissed the stories as fake news. But it’s too late now.
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