The Census Case Just Took an Even Stranger Twist

In the real world, the fact that the executive branch plans to offer “a new rationale” is proof it has been lying. In the legal world, however, this maneuver might yet succeed.

There are many critiques of the Trump administration’s legal strategy in its quest to ask about citizenship on the 2020 census, but one cannot fault its chutzpah.

In a filing today, the Department of Justice told Judge George Hazel it might propose “a new rationale”—as yet unspecified—for asking about citizenship, and accordingly asked the federal judge to halt a case about whether the government acted with racial animus in trying to place the question on the census. Government lawyers further argued that since the status quo already bars the question under the old rationale, further litigation is unnecessary, though Hazel rejected the government’s request.

It’s the latest twist in a dizzying roller coaster of a case. Last week, the Supreme Court ruled against the Trump administration, effectively concluding that it lied about the reasons it wanted to ask the citizenship question. Government lawyers then told the plaintiffs and Hazel that they were dropping the matter, and that the census would be printed without the question. But after President Donald Trump angrily tweeted that he was still pursuing the matter, government lawyers were forced to admit to Hazel that they no longer knew what was happening. Hazel demanded an answer by today, hence the new filing.

In the real world, the fact that the executive branch apparently plans to offer some new, unspecified rationale for a decision it has already made is proof it has been lying about the motives all along—to Congress, to the American people, and to multiple federal judges. In the legal world, however, this maneuver might yet succeed.

To get the citizenship question on the census, Commerce Secretary Wilbur Ross put the Justice Department up to claiming it needed citizenship data to enforce the Voting Rights Act. Ross claimed that the Justice Department came to him with this request, but documents have turned up since then that show he solicited it.

Nonetheless, the government told Congress and courts, in sworn filings, that the question was needed to enforce the Voting Rights Act. By the time the case reached the Supreme Court, the pretext was in shreds, and Chief Justice John Roberts led a 5–4 majority that rejected the administration’s attempt to include the question. But the decision left the door open for the government to come back with the “real” rationale and try again. That’s what the government is doing now.

Meanwhile, Trump is happily telling reporters that his administration was lying before, and that one real reason for the question is to generate new data to redraw congressional districts.

“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 today. “You need it for many reasons.”

As it stands, congressional districts are allotted based on the total population of states. The Trump administration seems to want to base the allotment on the citizen population instead, which would likely enhance the power of Republican-leaning states at the expense of Democratic ones heavy with noncitizens. The Census Bureau itself concluded that the question would lead to a significant undercount of the United States population.

The plaintiffs argued that one motive for the question was to allow for redistricting on the basis of the citizen voting-age population. The president’s solicitor general explicitly denied that, calling it a “conspiracy theory … nonsensical even on its own terms.” Now Trump is baldly saying it was true.

Trump’s accidental moment of honesty is bad news for Wilbur Ross, whom Trump is effectively hanging out to dry as a perjurer. It’s bad news for the solicitor general and the Justice Department lawyers, who have to go before federal judges and admit that their prior claims were nonsense. It would be bad news for the credibility of the Trump administration, were there still any objective debate about its credibility, which there is not, or if the president cared about being shown as a liar, which he does not.

In today’s filing, the Justice Department cites the litigation over the president’s travel ban, in which the Supreme Court ultimately decided to consider only the final legal version of the ban and ignore Trump’s previous statements. Everyone living in the real world knew it was intended to fulfill the president’s campaign-trail promise to implement a Muslim ban, but the Supreme Court effectively said that as long as the government constructed a separate rationale that could pass legal muster, it was acceptable. Now, in the census case, the government wants the courts to once again ignore all of its previous statements and consider only some as-yet-unspecified rationale. In other words, the administration would like to be rewarded for lying.

As the law professor Rick Hasen writes:

Forget if we had discriminatory racial intent before in adding a question, DOJ argues, because any new decision would be fresh and pure. And because of this purity, there’s no need to look whether the government had discriminatory intent to start with. Presto! Nothing to see here court, please move on.

But Hazel ruled this afternoon that discovery will continue on the racial-animus question:

Plaintiffs’ remaining claims are based on the premise that the genesis of the citizenship question was steeped in discriminatory motive … Regardless of the justification Defendants may now find for a “new” decision, discovery related to the origins of the question will remain relevant.

No one knows how the Supreme Court will look on a hypothetical new rationale. On the one hand, Roberts invited the administration to return with its genuine motivation. On the other, the justices would have to overlook the dance the government is attempting. Furthermore, the administration can’t very well admit that it wants to undercount the population for political advantage—as Trump’s remarks today imply—because it would have to tell the courts that it is aiming for a less accurate census.

“Anything they come up with now will demonstrate that they have been misrepresenting themselves to Congress, to the American people, to the courts,” Arturo Vargas, the chief executive officer of the National Association of Latino Elected and Appointed Officials and a census expert, told me. “This is why the attorneys working on this case realize that they don’t have any recourse. Either they admit they lied, or they try to come up with another reason that I don’t see how any court could believe.”

Meanwhile, Trump also says he’s considering an executive order to add the citizenship question as some sort of addendum to the main questionnaire. It’s unclear how this would work. First, it would seem to run afoul of existing injunctions. And second, even if it succeeded legally, Terri Ann Lowenthal, a former congressional staffer and a census expert, told me she doubted it would work logistically.

“Without knowing exactly what the president envisions, it would be neither operationally feasible nor scientifically sound to add another piece of paper to the census packet that will be sent out or administered starting in less than six months,” she said.

The uncertainty comes as the Census Bureau is typically finalizing the last details for the decennial census. Vargas said he worries that the ongoing dispute will serve as a dangerous distraction.

“We’re going to do everything we can do to have a reliable census, but if the administration itself continues to sabotage the census, a tainted census will not be our fault,” he said.

Then again, it appears a tainted, inaccurate census is what the Trump administration has been seeking all along.