Even If You Believe There Should Be A Citizenship Question On The Census, This Is Wrong…
If Trump’s lies upon lies, which even the Chief Justice of the Supreme Court agrees are lies, end up somehow having no consequences, then probably nothing ever will…
We usually issue updates to the stories we publish when any important new developments arise. But when the Commerce and Justice Department said they were dropping the idea of adding a citizenship question from the 2020 Census, after the Court ruled they’d lied about the reason for putting it on, we thought to ourselves “not so fast”. And we didn’t update, despite numerous headlines in major publications declaring the question kaput. Because we didn’t think that outcome would sit well with the President, and he wouldn’t care that the Supreme Court had just had the last word. And that’s just what happened.
Here’s a clip of Trump talking about his thinking over the weekend (click on the photo to play):
Actually, the 5–4 decision a little over a week ago, with Chief Justice John Roberts writing the majority opinion, didn’t exactly ban the Trump Administration from adding the citizenship question, it simply said they couldn’t do so for the reason they were giving, since it had become so provably phony.
So no problem, right? All they’d have to do is come up with a different reason. Just like with the “travel ban”: when it went from being a ban on Muslims to being a ban on residents of certain (mostly Muslim) countries, it suddenly became OK in the Court’s eyes.
In fact, declaring the declared reason for adding the census question to be a “mismatch” with the reason provided, as Chief Justice Roberts politely put it, might’ve actually cleared the way for the Secretary of Commerce (or the President) to say “we just want it on because we want it on”. And that still might be the clearest path forward for the President, should he decide to put it on as the result of an Executive order. And Trump says he’s thinking about doing that. Conservatives in Washington these days seem very excited about expanding the scope of executive power; letting the President do virtually anything for virtually any reason.
When the Trump Administration thought the Supreme Court would be solidly on its side, it insisted on a ruling on the Census before the end of June, saying printing had to begin by July or it wouldn’t be out on time. But that was when the ACLU was asking a judge for a delay. And, in fact, the administration portrayed this as such a hard deadline that they contended pushing it back even a few months would cost taxpayers so much more money it’d require a new act of Congress to fund. Now that the ruling’s gone against Trump, apparently some or all of that may not be true. And a delay may suddenly be doable. Here’s a link to an extensive analysis of all the twists and turns so far that we really like.
But will a court allow that considering how strongly Trump’s people insisted that deadline was hard and fast? And would they allow the question to simply be tacked on since it was actually the Trump Administration originally and forcefully argued it couldn’t be done?
A lower court judge handling the case denied Trump’s lawyers the entire 4th of July weekend to present a new approach, insuring they come up with something by July 5th, but then sort of backed off when they said they were definitely going to come up with something, which we should find out more about today. As UC Irvine Law Professor Rick Hasen puts it, the approach of Trump Administration lawyers seems to be: “Sorry if we were acting with discriminatory intent before. Give us a do over and we’ll do a better job hiding our real intent.”
What we did find out is that many of the Justice Department lawyers who have been handling the case so far are off it as of today, and new ones are coming on. The DOJ gave no reason. But under certain circumstances, the Justice Department does not force attorneys to work on cases with which they do not agree.
It’s not surprising Trump’s irked: he’d assumed he’d solved the problem of a Supreme Court that might sometimes stray from his demands after he’d named Justices Gorsuch and Kavanaugh. And they have been extremely loyal to him, including in this case. And it also underscores the fragility of the Supreme Court: the two oldest Justices are Liberals, which means that should Trump have the opportunity to replace either of them, Justice Roberts no longer is the most centrist vote, and the result of the recent ruling would’ve been very different.
But here’s the real danger: if the President simply ignores or reverses any decision at all that he doesn’t like, in effect saying “just try and stop me”, and no one stops him, then how’s anyone gonna stop him from just doing what he wants at all times and ignoring the Constitution?