Trump’s Malarkey Only Goes So Far
Even in defeat, the administration can’t stop trying to snow the public about a proposed citizenship question.
The shortest way of describing what happened with Donald Trump’s census fiasco is that mendacity met the rule of law and, for now, the rule of law won. Trump tried to add a citizenship question to the 2020 census, but the Supreme Court stopped him because the rationale his administration offered for the change was demonstrably false. The fallback plan he hinted at—of adding the question via executive order—never materialized because the president has no such authority. On Thursday, Trump gave up, though he pretended otherwise.
Unfortunately, his appearance Thursday—alongside Attorney General William Barr and a silent Secretary of Commerce Wilbur Ross—strongly suggests that the president and his enablers will keep trying to snow the public on this issue. Armed with an executive order mandating nothing that could not have been done from the get-go, Trump and Barr sought to camouflage their defeat with the mixture of partisan bile, self-contradiction, and half-truth from which the administration’s census policy has been concocted all along.
The “new option” touted by the president “to ensure a complete and timely count of the noncitizen population” was available to the administration from day one. Not only does the Census Act authorize the secretary of commerce to seek information from other government establishments, but it expresses Congress’s preference for such data acquisition over “direct inquiries,” where possible. The secretary concluded, however, that reliance on administrative records would be inadequate to determine the actual size and location of the U.S. noncitizen population. Now Trump insists that the data project will yield results “far more accurate” than the direct questioning he and Ross championed. In other words, the president is blithely saying the exact opposite of what his administration previously asserted.
The most revealing half-truth uttered by both Trump and Barr is that the Supreme Court’s decision amounts to no more than a requirement for a “better record.” According to Trump, “The Supreme Court ultimately affirmed our right to ask the citizenship question,” but “ruled that we must provide further explanation.” Not quite. The problem the Court identified was that the secretary of commerce had lied. As the court put it, Ross had presented “an explanation for agency action that is incongruent with what the record reveals about the agency’s priorities and decision making process.” The secretary, in other words, had exceeded the legal system’s tolerance for untruthfulness.
The making of public policy, the late judge Patricia Wald maintained, is not just “a rarified technocratic process.” It is universally understood that when government officials pursue their authorized purposes, they are typically animated by multiple motives, some more nakedly political than others. Perfect candor is not required.
The problem is that, if law is to function, lying must have some limits. If every benign incantation of government reasoning allows unspoken, irrational, and even illicit purposes to be pursued without check, the very notion of a government of laws evaporates. That’s what was at stake regarding the census. In a famous passage from one of his most important decisions, Chief Justice John Marshall wrote: “Should Congress, under the pretext of executing its powers, pass laws for the accomplishment of objects not entrusted to the government; it would become the painful duty of this tribunal, should a case requiring such a decision come before it, to say that such an act was not the law of the land.” John Roberts’s Court was called upon to review the action of the Department of Commerce, not Congress, but the point is the same: The law requires at least some measure of good faith. It’s no wonder Trump lost.
Barr said Thursday that Trump had ordered him to try to find a path forward, and Barr believed that he “could plainly provide rationales” for inquiring about citizenship “that would satisfy the Supreme Court.” Barr was perhaps fortified in his confidence by Trump v. Hawaii, in which a different five-justice majority, again speaking through Roberts, was willing to uphold Trump’s travel-ban proclamation. The majority there overlooked the president’s anti-Muslim rhetoric and accepted the government’s official claim that the proclamation’s purpose was the protection of national security.
But Trump v. Hawaii was a radically different case. It involved a statute that explicitly authorized the president, not any other official, to restrict the entry of foreign citizens into the United States. He could act based on his personal determination that their entry “would be detrimental to the interests of the United States.” In Roberts’s judgment, a challenge to the travel ban based on impermissible presidential motive could “‘inhibit the flexibility’ of the President to respond to changing world conditions.” He determined that the Court’s “inquiry into matters of entry and national security [should be] highly constrained.”
However, the census—and most domestic public administration—involves no such considerations. There is no lurking threat to national security for census takers to police. Neither the Constitution nor Congress gives the president any administrative role in deciding the questions to be asked. The case involves routine questions of administrative law.
The president’s foremost constitutional charge is “to take care that the laws be faithfully executed.” Whatever uncertainty surrounds the meaning of faithful execution, honesty, at least, must be involved. To hasten Supreme Court involvement, the Trump administration insisted that it needed a resolution of the matter by June 30—an assertion it would have had to abandon if it continued its fight. For some reason, the lawyers who argued the administration’s case in two courts were not ready for the task. The Justice Department jettisoned its original legal team to bring in lawyers from the Office of Immigration Litigation, the civil-frauds division, and the consumer-protection branch, none of which has any obvious expertise regarding the census. It never explained why the original lawyers were removed.
Events have revealed that the Trump administration’s handling of the census question and the ensuing litigation has reeked from the beginning of prevarication and contempt for law and orderly process. In case anyone missed it, both the president and Barr—whose eager embrace of his role as a Trump partisan further degrades his office with each passing day—underscored the political aim underlying the citizenship-question campaign: to permit experiments in legislative redistricting that would lower the representation of heavily Democratic cities and increase the strength of rural Republican strongholds. In his remarks in the Rose Garden on Thursday, Trump actually invited states to undertake such gerrymandering, because the Supreme Court “said it would not review certain types of districting decisions.”
Trump’s appeal to partisanship was a rare moment of candor amid a speech otherwise full of malarkey. But if the president’s handling of the census case is any indication, neither he nor his enablers have any inclination to close the ever present gap between what Trump says and what is actually happening. Whether the federal judiciary will demand some measure of good faith from Trump in future disputes remains to be seen, but his contrivances will surely create other occasions to test the courts’ resolve.