The Census Case Could Provoke a Constitutional Crisis

Many years ago, I spent a restless night as a volunteer in a North Carolina homeless shelter listening to the man in the next room promise that in just about one more minute, he was coming over to punch me in the face. Eventually he talked himself down, fell asleep, and woke up remembering nothing.

Over the July 4 holiday, however, I was reminded of that evening: The White House has adopted the same angry-drunk rhetorical mode, as President Donald Trump seems to be trying to talk himself into defying the Supreme Court.

Most likely, Trump and his Court will move on to other things, but they may not. And if the administration tries to end-run the Court, it will set off a constitutional crisis of a kind that even Richard Nixon ultimately did not dare to provoke.

To Trump and those around him, I suspect, the crisis has already begun. To them, it consists in this: Trump’s own Supreme Court—bought with dark money and earned with power politics—ruled against him on an issue of the highest consequence. This is a first for this Court, and Trump seems not to know how to handle it.

Let’s review the bidding. After Trump’s secretary of commerce, Wilbur Ross, took office in 2017, he ordered that the 2020 census questionnaire ask whether each member of each American household is a U.S. citizen. The question was on a conservative wish list. Opponents (and Census Bureau experts) warned that many immigrants would be too intimidated to respond to the form at all, and their exclusion from the tally would help shift political power to the Republican Party. Ross, however, claimed that the question was needed to enforce the Voting Rights Act. He stuck to that story right up to moment when five justices—Chief Justice John Roberts and Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan—rejected it as a clumsy lie.

Since then, the administration and its allies have split their time between reviling Roberts and demanding the opportunity to tell a better lie. If they are denied that chance, they seem to be coming up with reasons that Trump can add the question anyway, despite the Supreme Court’s order.

In his majority opinion, Roberts wrote that a citizenship question might be permissible, and might even be a good idea—if Ross had actually based the decision to include it on a valid reason. Instead, Roberts wrote politely, “The VRA enforcement rationale—the sole stated reason—seems to have been contrived.” A citizenship question might pass review if it was supported by truthful and relevant reasoning, Roberts wrote.

Many have taken this as an invitation to Ross to hastily provide a different explanation and get the Court’s approval of the question on the 2020 questionnaire. I read it differently. I think Roberts wanted to signal that a future administration might be able to include such a question if it had a good reason—but that this administration blew its chance. If that’s the right reading, the case is effectively over.

Certainly that seems to be how the lower-court judges involved read the case. Administration lawyers had asked to freeze the cases until the department could come up with a new rationale; district courts in both New York (where the original case was filed) and Maryland (the site of a different suit charging that deliberate racial discrimination is behind the question) have politely declined.

In the interim, Trump has said that the real reason was political after all: “You need it for Congress for districting, you need it for appropriations, where are the funds going, how many people are there, are they citizens or not citizens?” he said Friday. Trump’s lawyers had told the Supreme Court that those political reasons had nothing, nothing, nothing! to do with the question. Now Trump says they did.

Can the administration go back and cite those reasons now? Here’s a basic rule of civil procedure, called “claim preclusion”: Ordinarily, parties before a court get a fair shot to make any arguments and offer any evidence they have. If they lose, parties don’t get a complete do-over on the grounds that they want to use arguments they could have used before because if they had, maybe they wouldn’t have lost. Such arguments, courts say, are “waived.”

Trump seems to think he can avoid preclusion by issuing an executive order imposing the question. As of July 7, 2019, however, the federal courts still have the power to set aside unconstitutional executive orders. Ask the late President Harry Truman, who, as commander in chief, seized American steel mills in order to end a strike that was interfering with the Korean War effort. The Supreme Court told Truman he had no such power, and Truman meekly gave back the mills. Maybe the label “executive order” will magically intimidate Roberts. But I wouldn’t bet on it.

If I am right, Trump loses again. Except … Donald Trump doesn’t really recognize that courts have any authority over him. And here we come to the most dispiriting part of the entire census clown show: the magical emergence of a brand-new reason he might be able to cut courts out of the dispute.

On April 25, Josh Blackman, a professor at the South Texas College of Law, produced a stunning new interpretation of the Fourteenth Amendment. Section 2 states that if a state denies “the right to vote” to any of its “male inhabitants … being citizens of the United States,” then the state’s “basis of representation [in the House of Representatives] … shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens …”

Blackman suggested that Section 2 requires a citizenship question on the census form itself, in order to enforce the reduction of representation. He explained:

If this argument is correct, then the government would not only be justified in counting the number of citizens in a given state; Section 2 would require the government to have this information available, in the event that a state deprived males (and females) of the right to vote. This is an obligation: the representation “shall be reduced.” And Congress would not be able to enforce Section 2 without an additional enumeration based on citizenship. An estimate would not suffice.

Blackman himself leaves the reader to decide the import of his reading. But Trump’s defenders were swift to seize upon it, arguing that if the Constitution mandates a count of citizens, and Congress has not added it to the census, then the president would be justified in remedying that omission by executive order.

Though we differ politically, Blackman and I are in the same racket: Our job is to find interesting new interpretations of the Constitution, sometimes tied to the news. So I say this with reluctance: I spent six mortal years of my life reading the entire record of the adoption of the Fourteenth Amendment. There are some holes in this argument.

David Rivkin, a conservative lawyer, wrote in Thursday’s Wall Street Journal that the Blackman theory of the Fourteenth Amendment gives Trump a way around his defeat in the Supreme Court:

The president should issue an executive order stating that, to comply with the requirements of Section 2 of the Fourteenth Amendment, the citizenship question will be added to the 2020 census. In addition, he can order the Commerce Department to undertake, on an emergency basis, a new Census Act rulemaking.

Then, he wrote, the administration can run back to the Supreme Court and say it now has a “clear and compelling” reason for the question.

But this claim doesn’t really hold water. The census clause is in Article I of the Constitution. Article I provides powers to Congress. It requires that an “actual enumeration” be carried out “within every subsequent Term often Years, in such Manner as they [meaning Congress] shall by Law direct.” The census, and the following apportionment—the distribution of seats in Congress—are up to Congress, not the president.

Did the Fourteenth Amendment change that secretly? To begin with, no state has ever had its representation reduced for denying citizens the vote. Next, nothing in the Section 2 language, indeed nothing in the entire Fourteenth Amendment, mentions or relates to the decennial census, much less to the specific form of the census questionnaire. It doesn’t say that representation should be reduced when the census shows that citizens are being denied the vote. Instead, it seems to suggest that reduction should happen when Congress decides a state is abridging the right to vote. Congress might use census figures, or it might not.

Next, the Fourteenth Amendment as a whole is concerned with giving more power to Congress. There’s no mention of the president as responsible for apportionment. In fact, the only change in the separation of powers the text of the amendment makes is a reduction in the president’s pardon power.

If, in fact, the Fourteenth Amendment requires that the president impose a citizenship question on the census form, how come nobody ever noticed that until the precise moment, 150 years after its passage, that Donald Trump needed a new argument? The last time the Census Bureau asked about citizenship was 1950, and even then, it restricted the question to the foreign-born. That’s seven decades of silence on the supposedly clear and imperative meaning of Section 2.

The Fourteenth Amendment argument has little merit, but that may not matter to the unstable ignoramus in the White House. He is just mean and dumb enough to seize on it as justification for defying the Court.

And, in fact, more such justification is flowing from Hugh Hewitt, the conservative commentator and law professor who once styled himself “a ‘rule of law’ conservative.” On July 1, Hewitt proclaimed a new revelation in The Washington Post: “The census belonged to the president. Until this past Thursday it did,” he wrote on July 1.

The way forward is thus both obvious and urgent: President Donald Trump, Attorney General William Barr, Commerce Secretary Wilbur Ross and [Secretary of State Mike] Pompeo ought to have a meeting when the president returns from the Group of 20 summit, and decide if such questions are necessary and, if so, why. If yes, then Barr should commit the conclusions to writing and prepare an executive order for the president’s signature directing the commerce secretary to add any such questions, and be prepared to defend the questions on the grounds discussed in the meeting. Nothing more is required.

In a follow-up column, Hewitt warns Roberts that the Court must make an about-face if it is to preserve “its reputation and the reputation of all the courts as impartial umpires.”

It’s not entirely clear to me what Hewitt means when he says the census “belongs” to the president. Under the Constitution as written, that’s just wrong; the enumeration clause is in Article I, which empowers Congress, and the text makes clear that Congress is to handle it and the resulting enumeration. The Court made clear that Congress could mandate a citizenship question; but since it didn’t, the executive must follow the law if it wants to add one.

The Hewitt rationale seems to be a mash-up of the Rivkin-Blackman Fourteenth Amendment argument and a generous dollop of overall “unitary executive” ideology. It’s not just wrong; it’s bosh. Not to put too fine a point on it, but I haven’t had to wade through such toxic pseudo-constitutional sludge since the last time I sneaked into an Oregon militia meeting.

If the administration rushes back to the Court for a mulligan, it will almost certainly be denied. And here’s where Trump’s truculent tone becomes most chilling. Because the next step would, logically, be a claim that the executive can ignore the Court.

That probably won’t happen, I say with hollow assurance. Even many devotees of the near-dictatorial “unitary executive” would, I hope, draw the line at Andrew Jackson–style defiance. Most likely Trump, like the angry drunk in the shelter, will talk himself down.

But the idea is now in the room, and may be hard to banish as new defeats mount up. “Reason by degrees submits to absurdity,” Samuel Johnson once wrote, “as the eye is in time accommodated to darkness.”

Less than three years into the Trump era, we are becoming accommodated to dark times.