//  7/5/19  //  Quick Reactions

Today’s census-case filing by the Department of Justice in federal court in Maryland is breathtaking in its honesty—or at least its transparency.  Having been ordered to state by 2 p.m. today whether the Administration still might seek to add a citizenship question to the 2020 census even after the Supreme Court’s ruling last Friday, the Department of Justice today told Judge George Hazel that, yes, the Administration still might try to go forward.  The Supreme Court’s decision last week, the filing noted, ruled that the question could not be added to the census because the Department of Commerce’s stated reason for adding the question—to help in the enforcement of the Voting Rights Act—was “pretextual.”  (That is, it was a lie.)  So to find a way forward, today’s filing says, “the Departments of Commerce and Justice have been instructed to examine whether there is a path forward, consistent with the Supreme Court’s decision, that would allow for the inclusion of the citizenship question on the census.”  In other words, having been told by the Supreme Court that it could not add the question on false pretenses, the Administration is now at work trying to figure out whether it can offer a different explanation for the question—one that the courts would accept.

The obvious implication is that if the Administration does come forward with another rationale for putting a citizenship question on the census, that proffered rationale will also be pretextual.  Coming up with a rationale ex post is the definition of pretext.  Similarly, if someone says “You’re lying about why you want to do X,” you might say “OK, fine.  Here’s my real reason.”  But if you say “OK – now give me a few days to figure out another reason,” we can be pretty sure that you are going to come back with a made-up story.  If you were going to give your real reason, you wouldn’t need time to prepare your explanation.  You already know your real reason, and you could tell it to us right now. 

The Administration has known for a long time why it wants to add a citizenship question to the census.  It is widely understood that many Latinos, including many who are in the country legally, are reluctant to tell the government that they are not citizens.  Worse, because a census questionnaire asks not just about one person but about an entire househould, the form would require Latinos in that position to tell them government about the citizenship status of their family members as well.  As a result, many Latinos—the government’s own official estimate is around six percent—will simply decline to answer the census.  The census will therefore significantly undercount the Latino population.  So when legislative districts are drawn, political power will shift away from Latino areas, and when federal dollars are allocated, few dollars will be allocated there.

That the Department of Justice could so transparently tell a court to hold on while it makes up a lie is shameful.  That the Department apparently thinks it plausible that the courts might go along is an insult to the judiciary.  What is not yet clear, however, is whether the courts—and in particular, the Supreme Court—will prove itself deserving of the insult.


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The decision is a victory for free speech, an important signal to government officials in the social media era, and a refreshing holding that the President is not above constitutional constraint

Amanda Shanor

The Wharton School

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The decision mounts an end run around other federal courts and prior precedent in the Fifth Circuit and risks disrupting insurance markets

Elizabeth Sepper

Washington University

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7/2/19  //  Commentary

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Michael C. Dorf

Cornell Law School