//  7/15/19  //  Quick Reactions

After flirting with the idea of re-imposing a citizenship question on the census via an executive order, the Trump administration finally caved last week and stated it would not include the question on the census after all. But the administration’s antics between the time of its concession and the Supreme Court’s decision in the census case were nonetheless significant—they may have consequences for the administration, the Supreme Court, and the targeted victims of the citizenship question.  

The administration’s behavior since the Supreme Court’s June 27 decision invalidating the citizenship question functioned a perpetual reminder of the administration’s bad faith. That is not a good thing, either for the administration or for the Court. The administration’s misdeeds may influence the Justices’ perceptions of the administration forward, which may affect the Court’s resolution of important cases. The administration’s continued antics may also influence public perceptions of the Court since the President and Attorney General’s admissions made clear that four Justices, including the President’s two nominees to the Court, allowed the administration to get away with blatant lies. And, as several commentators have pointed out, the administration’s continued scare-mongering about the citizenship question will likely scare away members of the Latinx community from the census.

In Department of Commerce v. New York, the Supreme Court held, 5-4, that the Trump administration lied about why it said it wanted to include a citizenship question on the census. The Court’s ruling really is that simple. The administration had maintained that it wanted to inquire about citizenship in order to better enforce the Voting Rights Act. The Chief Justice, joined by the four more liberal Justices, concluded that explanation was a lie—it was, in the Court’s words, a “contrived” “distraction” that concealed the truth. It did not reflect the actual reason the administration wanted to ask about citizenship. Four Justices, including the President’s two nominees to the Court, Justice Neil Gorsuch and Brett Kavanaugh, disagreed. They found the administration’s justification credible enough and would have let the citizenship question stand.

But the administration’s behavior since the Court’s decision only strengthened the case against the government and provided further support for the conclusion that the administration had lied about its reasons for including the citizenship question. The Commerce Department initially stated that it was proceeding to print the census forms without the citizenship question. Then, just before the July 4th holiday, the President tweeted that his administration was still looking for ways to include a citizenship question on the 2020 census.  And the President and attorney general signaled that they were open to doing so via executive order.

The President explained why his administration wanted a citizenship question, and in doing so, he let the cat out of the bag. The President admitted that a citizenship question is “need[ed] for Congress. You need it for Congress for districting.” The challengers in the census case have long argued that the administration sought to add a citizenship question in order to allow states to draw districts based on the number of citizens, rather than on total population—a move that would likely reduce representation in Democratic areas and increase representation in Republican areas.

In a letter to the Court, the Solicitor General dismissed this accusation as “a speculative conspiracy theory.” The four Justices in dissent, including Justices Gorsuch and Kavanaugh, went along with the administration’s characterization of the challengers’ arguments. The Justices in dissent even went so far as to accuse the trial court judge and the five Justices in the majority of “creat[ing] an eye-catching conspiracy web” because the judges were “predisposed to distrust the Secretary or the administration.” They wrote off the majority’s opinion on the ground that it reflected “the din of suspicion and distrust that seems to typify modern discourse.”

The President’s admission that the challengers, the trial court, and the Justices in the majority were right all along is not a good look for the dissenters. It makes them seem either like willfully ignorant fools or flacks for the administration.  At the press conference announcing that the administration caved on the citizenship question, the President and Attorney General only bolstered that conclusion. “Some states may want to draw districts based on voter eligible population,” Trump said, before proceeding to do his usual xenophobic schtick against “illegal aliens.” Attorney General Barr echoed these claims—“this data could be useful for” the “legal dispute about whether illegal aliens can be counted for apportionment purposes,” Barr said. 

So much for a conspiracy theory, I guess. (Recall that the administration insisted throughout the litigation, and stated in court, that its true for purpose for including the citizenship question was to better enforce the Voting Rights Act and protect the Latinx community. Lolz.)

But the administration has discredited more than just the Justices who sided with them. They have also undermined the credibility of the attorneys for the United States. The five Justices in the majority did not conclude that the administration was completely forbidden from asking about citizenship on the census; they merely said that the administration had to “offer genuine justifications” for its decision.  But many observers (including me) expected that the Court’s decision would prevent the administration from asking about citizenship on the 2020 census in particular simply because of timing. The administration had represented throughout the litigation that census forms had to be printed before July 1. The Court’s decision on June 27 therefore left the administration no time to reach a new decision to include a citizenship question on that deadline.

Apparently, the timeline for the census may have been a lie as well. After the Court’s decision, the intimated that it could make modifications to the 2020 census after June, despite representing otherwise throughout the census litigation. In January, when the Solicitor General of the United States asked the Supreme Court to take the unusual step of reviewing the census case before a court of appeals did, he wrote that “the Census Bureau must finalize the census forms by the end of June 2019 to print them on time for the 2020 decennial census.” The Solicitor General later repeated this same claim on June 20. He wrote that “Under the current budget changes to the paper questionnaire after June of 2019 would impair the Census Bureau’s ability to timely administer the 2020 census,” and dismissed the plaintiff’s claim that census forms could be finalized “without additional congressional appropriations” as “unsupported by the record.” 

It is never a good thing for a Department of Justice attorney to play fast and loose with the facts in court. It is spectacularly short sighted for the Solicitor General of the United States to misrepresent to the Supreme Court how the government works. The Court regularly relies on the Solicitor General’s representations about the federal government’s operations to inform the Court’s decisions. Now, the Court (or at least some Justices) may (quite reasonably!) be skeptical about the Solicitor General’s statements if they perceive that the Solicitor General was less than forthcoming with them. This upcoming term alone, the Court will hear several cases about government operations—the challenges to the rescission of the Deferred Action for Childhood Arrivals program (disclosure: I am one of the lawyers on this case); a case about personnel expenses at the United States Patent and Trademark office; and another about the Financial Oversight and Management Board for Puerto Rico. And the stain on the Department of Justice’s reputation may last longer than the Trump administration.

But the costs of the administration’s antics over the last two weeks do not entirely fall on the government. Rather, as several commentators have suggested, the Trump administration’s repeated statements since the Court’s decision about how it wanted to obtain citizenship information from the census—as well as the statements Trump and Barr made at the press conference that the administration will find a way to get citizenship information to the Commerce Department by requiring federal agencies to share that information—may very well cause some depression in census responses. Perhaps they will cause more depression in census responses than a citizenship question alone would have. It is hard to say and may be impossible to know. But it is not hard to recognize that the administration’s not-so-subtle scaremongering about using citizenship information for immigration purposes is likely to scare away some immigration populations from responding to the census at all. And that will have the effect of reducing representation for immigration populations (in what tend to be Democratic areas).

The administration lied about its reasons for proposing a citizenship question. By repeatedly broadcasting this lie and others, the administration has made the four Justices who sided with the government in the census case look like fools or shills for the administration. Time will tell whether those Justices and the public will care (I think the four Justices in dissent couldn’t care less). But in the meantime, the administration’s intended victims, immigrant populations and Democrats, will suffer.

@LeahLitman


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