President Trump and Attorney General William Barr have moved from burying the contents of the Mueller report to jamming a question about citizenship status onto the Census.
The Supreme Court has already rejected the bid for a citizenship question on the all-important population survey. But the president’s hand-picked head of the Justice Department said on Monday that the administration was going to try again.
“We’re going to reach a new decision,” Barr told reporters in South Carolina after saying the court was “wrong” when it rejected the administration’s bid last month.
Trump and his administration have been trying to get a question about citizenship status added to the Census since 2017. Though they’ve claimed the controversial move is part of an effort to protect minority voting rights, evidence suggests they’re more interested in the lift it would provide to Republican efforts to rig elections in the party’s favor. Several cities, states, and organizations filed lawsuits challenging the question’s constitutionality. Federal courts ruled against the question, and the Trump administration appealed. The prolonged legal battle appeared to come to an end with the Supreme Court decision’s last month.
It was far from over.
The day after Commerce Secretary Wilbur Ross conceded defeat, Trump slammed his foot on the gas, writing on Twitter that the administration is “absolutely moving forward” with its quest to add the question to the survey. The tweet triggered a dizzying few days of confusion regarding how the Department of Justice should proceed.
Trump and Barr, however, stood clear-eyed: come up with a new excuse and head right back to the Supreme Court. If any of the DOJ’s attorneys disagree, they can leave. “I can understand if they’re interested in not participating in this phase,” said Barr.
Here’s everything you need to know about the ongoing Census saga:
What is the Census?
OK, let’s start with the basics. The Census is a national survey in which all U.S. residents must participate, conducted every 10 years, as stipulated in the Constitution. The last Census was held in 2010, the next one will be on April 1st, 2020. The Census is used to calculate the national population, as well as several other demographic metrics. Crucially, it’s also used to determine the “apportionment” of Congress, or how many seats in the House of Representatives are allocated to each state, and, in 2020, how over $675 billion in federal funding will be distributed.
Why does the Trump administration want to add a question about citizenship to the Census?
It’s pretty hard to argue the administration’s drive to add a citizenship question isn’t an attempt to dissuade undocumented immigrants living in the United States from participating in the Census, thus weakening their representation in Congress. Not only that, it would create citizenship data Republicans could conceivably use to further rig already-gerrymandered congressional maps in their favor.
This is more than just speculation. A May court filing revealed the daughter of Republican gerrymandering master Thomas Hofeller, who died last August, found a hard drive containing a study her late father wrote in 2015. The study laid out how the addition of a citizenship question would allow the GOP to screw Democrats out of House seats to an even greater degree than it already has. The filing also revealed that, before he died, Hoffeler played a prominent role in the Trump administration’s decision to attempt to add the question to the Census.
OK, but why does the Trump administration say it wants to add a question about citizenship?
Commerce Secretary Ross, who oversees the Census Bureau, has argued a citizenship question was necessary to properly enforce the Voting Rights Act, on the grounds that the number of citizens eligible to vote needs to be determined in order to ascertain which portion of these citizens are being discriminated against.
The rationale is laughable considering Republican efforts to weaken the VRA. “I do not know anyone who believes that the Trump administration is interested in enhancing the Voting Rights Act,” House Oversight Committee Chairman Elijah Cummings (D-MD) said in March as Ross testified before Congress. “The administration has done everything in its power to suppress the vote,” he added.
The addition of the question has been challenged in court, and lower federal courts have blocked it. The ultimate decision, however, was to be made by the Supreme Court, which ruled on the issue in June.
How did the Supreme Court rule?
Here’s where things starts to get crazy.
On June 27th, the Supreme Court ruled 5-4 that a citizenship question could not be added to the Census, with conservative Chief Justice John Roberts voting alongside the four liberal justices. The court argued Ross’s rationale was “contrived” and a “distraction,” and essentially accused him of trying to pull one over on the United States. The majority wrote it was clear Ross was “determined to reinstate a citizenship question from the time he entered office,” and that his reason for doing so was “unrelated to the VRA.”
Despite the language of the ruling, Roberts left open the possibility for the Trump administration to revise their argument that a citizenship question should be added. The prospect seemed unlikely, though, as the administration imposed a hard June 30th deadline to finalize Census questionnaires for printing.
On July 2nd, an attorney for the Department of Justice confirmed the “decision has been made to print the 2020 Decennial Census questionnaire without a citizenship question.”
Here’s the email from DOJ pic.twitter.com/PdyfK0a1hJ
— Daniel Jacobson (@Dan_F_Jacobson) July 2, 2019
Additional DOJ attorneys confirmed the news. So did Commerce Secretary Ross. “I respect the Supreme Court but strongly disagree with its ruling regarding my decision to reinstate a citizenship question on the 2020 Census,” he wrote. “The Census Bureau has started the process of printing the decennial questionnaires without the question. My focus, and that of the Bureau and the entire department is to conduct a complete and accurate census.”
So that’s it, right?
Uhhh, not quite. The following morning, Trump hopped on Twitter to express his displeasure, saying news reports accurately quoting by his own commerce secretary were “FAKE!” and maintaining the administration is “absolutely moving forward,” despite the Supreme Court’s ruling.
The News Reports about the Department of Commerce dropping its quest to put the Citizenship Question on the Census is incorrect or, to state it differently, FAKE! We are absolutely moving forward, as we must, because of the importance of the answer to this question.
— Donald J. Trump (@realDonaldTrump) July 3, 2019
Then all hell broke loose.
Later that day, U.S. District Judge George Hazel convened a hearing to get to the bottom of what was going on. Everyone seemed confused, especially the DOJ attorneys. “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,” said DOJ counsel Joshua Gardner, according to a transcript of the call. “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.”
Assistant Attorney General Jody Hunt offered a little clarity, kind of, explaining the DOJ had “been instructed to examine whether there is a path forward, consistent with the Supreme Court’s decision.”
Judge Hazel said he was “increasingly frustrated” with the situation, understandably, and suggested Trump should appear before the court.
Judge says he is "increasingly frustrated" with DOJ. Says if he was dealing with Facebook and a lawyer for Facebook said something & Zuckerberg said another, he would demand Zuckerberg appear in court b/c he would assume lawyer isn't speaking for Zuckerberg. But client is POTUS.
— Josh Dawsey (@jdawsey1) July 3, 2019
Hazel ultimately gave the DOJ a deadline of Friday, July 5th at 2:00 p.m. to either confirm that the citizenship question would be dropped from the Census, or, if not, to explain how they planned to argue for its inclusion.
What happened after the Fourth of July?
You’re not going to believe this, but the administration — which is now essentially working in tandem with the DOJ — decided to press on. On Friday morning, Trump said he was still considering options for how to force the citizenship question onto the Census, including doing so through an executive order or through an addendum to Census that would allow the question to be posed at a later date. “It’s one of the ways,” Trump said of adding the question via executive order, a move deemed by most legal experts to be unconstitutional and which would almost certainly fail to hold water court. “We have four or five ways we can do it. It’s one of the ways that we’re thinking about doing it very seriously.”
Q: "Are you going to issue an executive order on the census?"
President Trump: "We're thinking about doing that. It's one of the ways, we have four or five ways we can do it. It's one of the ways we're thinking of doing it." pic.twitter.com/vp93GpFKQA
— CSPAN (@cspan) July 5, 2019
Trump also said the quiet part out loud regarding his administration’s rationale for adding a citizenship question to the Census. “Number one, you need it for Congress, you need it for Congress for districting,” he said. “You need it for appropriations. Where are the funds going? How many people are there? Are they citizens? Are they not citizens? You need it for many reasons.”
Districting? What happened to the Voting Rights Act?
Later that day, the DOJ told Judge Hazel that they were going to “reevaluate all available options,” although they didn’t provide him with a specific course of action, as he had ordered two days earlier, or any sort of timeline. The DOJ was only able to offer that if the administration was able to formulate a new rationale, it would alert the court immediately.
But if the Supreme Court deemed the Voting Rights Act excuse “contrived,” what does the Trump administration expect it to make of a new excuse, concocted out of thin air over the course of an even smaller timeframe? This is likely what the career DOJ attorneys working on the cases pertaining to the question spent the weekend asking themselves. They wouldn’t have to worry about it come Monday.
Why did the Department of Justice swap in new lawyers to handle the case?
On Sunday night, the DOJ announced that replacing its team of attorneys handling the case with a new team of Civil Division lawyers. It offered no explanation for the move.
This development is ominous.
It almost certainly means the career attorneys working for the Department of Justice refused to go along with what Trump wants to do now with the citizenship question on the census. https://t.co/sWmE0Rd4Iy
— Rick Hasen (@rickhasen) July 8, 2019
On Monday, the Trump administration formally filed papers to replace the attorneys, again with no explanation. Career DOJ attorneys working on various cases pertaining to the citizenship question were to be replaced with attorneys from the Consumer Protection Branch.
Never seen anything like this. A complete withdrawal by all the trial level experts at DOJ — all of them. Every. One. This is the canary in the coal mine. Trump is stuck defending the census shenanigans w people from consumer protection division. They do impt work. Just. Not.This https://t.co/ob6IVzXA26
— Neal Katyal (@neal_katyal) July 9, 2019
Attorney General Barr addressed the shakeup while speaking to reporters on Monday. “We’re going to reach a new decision, and I can understand if they’re interested in not participating in this phase,” he said of the mass departure of DOJ lawyers. “I think over the next day or two you’ll see the approach we’re taking and I think it does provide a pathway for getting the question on the Census,” he added.
Later on Monday, the American Civil Liberties Union contested the withdrawal of the DOJ attorneys who had been working on Census litigation, arguing that the DOJ did not present “satisfactory reasons” for the move. A day later, U.S. District Judge Jesse Furman blocked the DOJ’s attempt to remove attorneys from the case, writing that the move to do so is “patently deficient.”
“Defendants provide no reasons, let alone ‘satisfactory reasons,’ for the substitution of counsel,” Furman added.
What happens next?
It’s impossible to say. The Trump administration will presumably trot out a fresh rationale for adding a citizenship question to the Census, on which the Supreme Court may once again be asked to rule. The four liberal justices would of course vote against it. Would Chief Justice Roberts defy the president again?
This post has been updated.