THE TRUMP ADMINISTRATION shows no sign of letting up in its fight to insert a citizenship question into the 2020 census. On July 7th, the Department of Justice (DoJ) announced that the legal team that had handled the case from the beginning was being replaced with a fresh batch of lawyers from apparently unrelated corners of the DoJ, including the consumer-protection branch. Separately, William Barr, the attorney-general, called the Supreme Court ruling against the administration on the census “wrong” and said the government still had a chance to “cure the lack of clarity that was the problem”. President Donald Trump, meanwhile, has suggested that he might try to circumvent the court’s ruling by issuing an executive order.
One week earlier, it had seemed that the battle was over. On June 27th Chief Justice John Roberts—departing from his conservative brethren to form a 5-4 majority with the liberal justices—had ruled that Wilbur Ross, the commerce secretary, violated administrative law by failing to provide a “genuine” reason for adding such a question to the census. Data from the questionnaire is used to determine how congressional seats and some $650bn in federal funds are allocated to the states, and experts agreed the new query would cause a severe undercount of immigrant households. On July 2nd, lawyers from the Department of Justice (DoJ) relented. “[T]he decision has been made”, they wrote, “to print the 2020 Decennial Census questionnaire without a citizenship question”. But the next morning—with census forms already rolling out of printers without the citizenship query—Mr Trump tweeted that the demise of the question had been greatly exaggerated. Indeed, he said, the reports were “FAKE”.
This put DoJ lawyers in a tight spot. On the afternoon of July 3rd, the lead lawyer told George Hazel, one of the district judges who originally blocked the question’s inclusion, that Mr Trump’s tweet “was the first I had heard of the President’s position on this issue” and pledged that his contradictory statement to the court the previous day—that the administration had given up on the question—was “absolutely my best understanding of the state of affairs” at the time. A note to Judge Jesse Furman later in the day made the same point with more detail: the DoJ and Department of Commerce were now under orders to “reevaluate all available options” and determine if the Supreme Court’s decision leaves open “any path” for adding the question back.
Is there such a path? There are two strong reasons to suspect that the answer is no.
First, take the crux of the Supreme Court’s decision. The court frowned on Mr Ross’s original justification for the citizenship question—gathering data to better protect minority voting rights—as a “distraction”. There is no plausible interpretation of the record, the chief wrote, that suggests Mr Ross ever gave a moment’s thought to the Voting Rights Act. His purported rationale was “contrived”. Some 16 months after Mr Ross ordered the Census Bureau to add the question, how could the government provide the courts with a new rationale that avoids this stumbling block? Hunting for a justification, it seems, is the act of contriving one. Alternatively, if there was a genuine justification for the citizenship query but the Trump administration papered over it because it was legally suspect—driving down Hispanic response rates to entrench white Republican power, for example, as recently uncovered evidence suggests—the government will be loth to own up to it and courts would balk.
Second, the government is, according to its own repeated declarations, too late. Throughout the litigation, the DoJ pointed to June 30th 2019 as the deadline for finalising the text of the census questionnaire. In order to get the forms printed and ready for 2020, the presses would have to be humming by the first week in July. Based on this strict cutoff date, the district court sped up its review of the case and the justices granted a very rare petition permitting the government to leapfrog the circuit court of appeals and proceed directly to the Supreme Court. The justices even agreed to a faster briefing and argument schedule to get the case heard and decided in the nick of time. So if the government were to somehow spirit up a proper rationale for the question, it would still have to explain why it had misspoken several dozen times when it told the judiciary it absolutely had to resolve the matter by the end of June.
The plaintiffs challenging the citizenship question are doing their best to hold the government to its word. On July 5th, they asked Judge Furman to put an end to the redo attempt once and for all. By reversing itself on the June 30th deadline, the filng claims that the government is “deceiving the judiciary and the public” and “putting the success of the 2020 Census in jeopardy”. The government has until July 12th to contrive a reason why the deadline it trumpeted as sacrosanct for over a year is, itself, now outdated. The plaintiffs are not letting the DoJ’s refashioning of the legal team slide, either. On July 8th, they filed papers asking Judge Furman to look into why the original lawyers were taken off the case and to ensure that they remain available to appear before the court, as necessary.
What happens next? The irregular and haphazard way in which the government has sought to add the citizenship question—which was developed with anti-immigration advisers in 2016 before being cast as a voting-rights necessity in 2018—is not likely to improve its chances before the federal district courts or, down the line, at the Supreme Court. Mr Trump’s suggestion that he could get the question inserted via executive order seems to be wishful thinking: the constitution is clear that Congress, not the executive, has authority over the census. On July 8th Mr Barr assured America that there will not be a long wait for the next chapter in the saga. “Over the next day or two”, he said, “you’ll see what approach we’re taking”.