Where We Stand On The Citizenship Question In The Census Editor’s Blog – Talking Points Memo / by Josh Marshall

Where We Stand On The Citizenship Question In The Census

Editor’s Blog – Talking Points Memo / by Josh Marshall / 1h

Since some of you were probably fully checked out over the long holiday weekend (good for you!), I wanted to make sure you were up to date on the status of the census citizenship question.

To review, the Supreme Court with Chief Justice John Roberts in the majority blocked the Trump administration from putting a citizenship question on the 2020 census. But it did suggest a path by which they could eventually get it in. Basically, if you tell us what your real reason for doing this is, and it’s not clearly a made-up reason, we’d probably let you do it. The problem was that the administration had already given one “real reason” which the Court deemed false and they’re up against a pretty tight deadline for printing the census in time.

It was on the basis of this set of problems that the DOJ and the Commerce Department decided to give up and go ahead with the census without a citizenship question. Given the magnitude of the decision, there’s close to no chance the final decision was not made by Attorney General Bill Barr. Given his belief in untrammeled executive authority, his intense desire to please the President and his general right wing, partisan politics, that tells us a lot. He must have thought that the timing logistics and the legal challenges were simply insuperable.

Things came apart after the cave became public when the President got on the phone with a group of rightwing friends who got him churned up about it enough to change the plan. There’s a fair amount of reporting that suggests it was the celebration and gloating of the attorneys and advocates on the plaintiffs’ side that got Trump to go off and shift gears. So the psychic pain of taking the L, shall we say, swayed him.

Trump tweeted and this left the government lawyers in the unenviable position of explaining to a federal judge in Maryland that what they’d told him the day before (no citizenship in the census) wasn’t true and that they didn’t really know what was true other than what the President had tweeted. Here are some of the jaw dropping highlights of that hearing.

That was July 3. The day after the holiday, the government made a new filing in which they explained that they needed more time to come up with a new “real reason” for why they wanted to put a citizenship question in the Census.

That’s basically where things remain today on July 8. The judge in the Maryland case, which is a subsidiary case in the larger census litigation, wasn’t terribly impressed and ordered discovery for this new stage of the case to move forward.

As often with Trump some of the biggest issues aren’t narrowly or necessarily constitutional. Or the real action is taking place outside of narrowly constitutional reasoning.

Let’s start by remembering that Chief Justice John Roberts is a diehard conservative who has led a Court which has moved decisively to the right and in a dramatically more activist direction. Especially in recent years, though, the one key brake on his actions has been a desire to maintain some level of respect for the legitimacy of the Court’s decision under his Chief Justiceship. Really, that is to say, respect for his legitimacy and his historic role on the Court.

It’s hard to say precisely which cases and which decisions have had this as their deciding factor. But this general pattern is widely recognized.

In this case, the administration put forward a reason for adding the citizenship question which was plainly pretextual and nonsensical on its face. For four of the conservative justices that was fine. Roberts held that the administration had broad discretion to run the census as they chose fit, but they had to tell the Court why they were doing it. Their “reason” clearly wasn’t the real reason. And without providing their real reason, they couldn’t do it.

This is what I’m referring to when I say that Roberts left a path open to get what the administration wanted. Just tell us the real reason and as long as it’s not totally crazy (the technical terms are “arbitrary” or “capricious”) we’ll probably let you do it. The upshot, I think, was that Roberts was basically trying to help as much as he could but the administration’s conduct and explanation were so sloppy and mendacious that they were going to make the Court look silly if it signed off.

Now there are some subsidiary questions this brought up. The Court had already decided that the administration lied with its first “real reason”. By ordinary standards that should create a pretty high credibility bar for your second stab at your “real reason”. If you’ve already lied to me once you’re going to need a pretty good explanation of why I’m supposed to believe your second stab at answering the question. Whether Roberts – and it’s really all about Roberts – chooses to apply that commonsense skepticism is not clear.

That’s where everything stood when the Court handed down its decision.

What is worth noting is the possible effect of subsequent events.

The administration announced its decision not to proceed, almost certainly based on Bill Barr’s judgement that there was no viable path forward. The government announced this decision in Court. The President then tweeted countermanding that decision – one he had almost certainly signed off on personally – because of the celebration of his opponents and a phone pep talk from his rightwing pals. The government then had to go back into court and back away from its earlier statement. The government is now arguing that it needs more time to come up with the new “real reason” that Roberts said the Court would need to sign review the matter again.

In practice this week’s back and forth comedy of errors probably matters a lot.

First, the administration could have come back in an orderly way and said we told you one reason we did it. You didn’t find that reason satisfactory so here’s another reason we did it. Now they’ve given one reason the Court says wasn’t true. They’ve folded, then unfolded and then come back saying they need more time to come up with the “real reason.” In other words, the Trump administration is really hitting Roberts over the head with what is already pretty obvious (and which Roberts would probably like to be less obvious): which is that anything the administration comes up with is obviously “pretextual”, i.e. a made up reason in place of the real reason they don’t want to admit in court.

Second, making one decision through normal legal channels, probably on the reasoning of the Attorney General, and then having the decision countermanded on Twitter, apparently without notifying his own lawyers, only compounds the impression of erratic and unconsidered actions. There were also press reports of Trump insisting on sidestepping the whole decision with an Executive Order, despite no obvious way that could be lawful. Basically, all of this tends to drive home the impression of a President who simply doesn’t like being bound by the decisions of the Supreme Court. Again, not a good look for the Court to sign off on that.

Third, on Friday President Trump went before the cameras and pretty openly stated that he wanted the citizenship question on the census for the purposes of redistricting, precisely the reason his opponents on this issue have claimed all along and which his lawyers have repeatedly denied, even in oral arguments before the Supreme Court.

Trump on why he wants a citizenship question: "You need it for congress for districting, you need it for appropriations." Key point: The Solicitor General specifically this was not why they wanted a citizenship question. This is the real reason that they've been hiding. pic.twitter.com/K0FT5yYVAh

— Josh Marshall (@joshtpm) July 5, 2019

These post-decision hijinks may not be determinative legally but in practice they probably make it far harder for Roberts to clean it all up. Roberts has shown clearly over a number of years that he is quite sensitive to the perception of his Court’s legitimacy at least within elite opinion. Trump has now created a situation in which any Roberts’ decision to green light this question, really no matter the reasoning he chooses, has the effect of signing off, co-signing really on behalf of the Court all this clownish behavior and obviously pretextual reasoning. Roberts clearly wants to help. And maybe he will help. But Trump has upped the costs of his doing so substantially.

SHAREVISIT WEBSITE