IF SOME of the more questionable items on President Donald Trump’s agenda have met resistance in other branches of government, the judiciary has provided a particularly straightforward check. So it was this week. On July 11th, after hinting that he would defy a Supreme Court decision blocking the attempt to add a citizenship question to the 2020 census, Mr Trump was forced to relent. At an event at the Rose Garden, the president announced that every household in America would, after a long court battle, receive a census questionnaire free of the query: “Are you a citizen of the United States of America?”
Last week, Mr Trump seemed determined to find a way to circumvent Department of Commerce v New York, the ruling from June 27th in which Chief Justice John Roberts described the rationale for the citizenship question offered by Wilbur Ross, the commerce secretary as “a distraction” and not “genuine”. Data from the questionnaire are used to determine how congressional seats are allocated to the states; experts agreed the query would cause a severe undercount of immigrant households. Citizenship-free questionnaires were already at the printer, but Mr Trump tweeted that “news reports” that the government was “dropping its quest” to add the citizenship question were “incorrect, or to state it differently, FAKE!” The government is “absolutely moving forward, as we must”, Mr Trump insisted. A few days later, he told reporters there were “four or five options” under consideration, that one of them was an executive order and that an “addendum” to the census could possibly be appended at a later time.
It seems none of the four or five options worked out. In his brief speech, Mr Trump wagged his finger at the courts and at “far-left-wing” activists but bowed to the judgment that the citizenship question had not been adequately justified under the strictures of administrative law. “We are not backing down’, Mr Trump said as he backed down, “on our effort to determine the citizenship status of the United States population”. The government would instead gather citizenship data from databases already maintained by a host of federal agencies, including the Social Security Administration. This information, which a new executive order requires to be transmitted to the Department of Commerce, will give the government more reliable numbers than a question on the census ever could. It will, said Mr Trump, “allow us to have an even more complete count of citizens”.
The president’s speech was a remarkable capitulation. It signaled both a willingness to let the Supreme Court’s decision stand and several reversals of positions the government had insisted upon—repeatedly and with a straight face, in print and in person—during the course of the litigation. Take first the official rationale for adding the question: better protecting minority voting rights. On July 11th, neither Mr Trump nor William Barr, his attorney-general, breathed a word of this justification. Instead, they said, rather ambiguously, that the data were necessary “to inform a wide array of public-policy decisions” and to allow states to redraw their legislative lines using eligible voters, not total population—a radical change that would shift power in many states from Democrats to Republicans.
Maybe even more remarkable is the government’s new claim—contradicting the argument it presented to the Supreme Court—that existing databases can supply more complete citizenship data than a census query could. According to the last brief filed to the justices before the April oral argument, while the challengers “insist that using administrative records alone would yield more complete and accurate citizenship information”, they are wrong. The claim is “factually incorrect”, though now Mr Trump and Mr Barr apparently consider it to be factually correct. It is the approach originally urged by the Census Bureau—to deaf ears, until yesterday—in 2018.
The executive order details several reasons the Trump administration may have wanted to ask census-takers about their citizenship status. But Mr Barr told reporters that time was quickly running out. Given inevitable legal challenges to any fresh attempt to re-justify Mr Ross’s move, and given injunctions already in place against the citizenship question, “[w]e simply cannot complete the litigation in time to carry out the census”, he said, “including appeals”. In the end, it seems the June 30th 2019 deadline the government set for the questionnaire’s finalisation may have come back to bite it: it would have been deeply awkward—and perhaps sanctions-inducing—for government lawyers to tell the Supreme Court that their self-imposed deadline could be safely ignored.