Originally published by The New Yorker
Near the end of the Supreme Court’s oral arguments regarding the Trump Administration’s attempt to add a citizenship question to the census, Noel Francisco, the Solicitor General, warned the Justices that a ruling against the government would open the door to “any group in the country to knock off any question on the census if they simply get together and boycott it.” Justice Sonia Sotomayor cut him off. “Are you suggesting that Hispanics are boycotting the census?” she asked. “Are you suggesting they don’t have, whether it is rational or not, that they don’t have a legitimate fear?”
The fear that immigrant communities are experiencing as the result of the Administration’s open hostility toward them was not an issue that the Court was asked to address in the census case. Neither did the Justices resolve whether racism may have played a role in how the Administration’s proposed citizenship question came to be. But in the time since the Court ruled against the Administration, at the end of June, these questions have acquired greater importance. That, in great part, is thanks to President Trump, whose insistence that the citizenship question be included in the census has sown chaos and uncertainty for the courts, the public, and members of his own Administration.
The mad scramble at the White House began late last month, after the Court’s ruling requiring the Commerce Secretary, Wilbur Ross, to adequately justify his push to add a census question about citizenship. On Tuesday, the Justice Department indicated that it was giving up the fight, informing lawyers for the state of New York and the American Civil Liberties Union, which had prevailed at the Supreme Court, that census forms for the 2020 count would be printed without the question—a rare public concession of defeat in the Trump era. Ross himself supported that decision, noting in a statement that his “focus, and that of the Bureau and the entire Department is to conduct a complete and accurate census.”
Then, on Wednesday, Trump threw a wrench in those efforts, calling his own Administration’s public announcement and the news reports about it “FAKE”—and vowing to move forward with the citizenship question. Later that day, lawyers for the Justice Department, faced with the President’s unexpected reversal, had the impossible task of explaining to judges in New York and Maryland the contradictory messages coming from the executive branch—and to account for the President’s apparent defiance of a ruling from the highest court in the land. The government had, after all, given the Supreme Court repeated assurances that June 30th was the deadline to begin the herculean job of printing the forms that will be sent to every household in the country.
One of those lawyers, Joshua Gardner, told a federal judge in Maryland named George Hazel that, in his sixteen years in the Justice Department, he had “always endeavored to be as candid as possible with the Court.” He added that Trump’s census tweet took him by surprise. “The tweet this morning was the first I had heard of the President’s position on this issue, just like the plaintiffs and Your Honor,” Gardner explained. “I do not have a deeper understanding of what that means at this juncture other than what the President has tweeted. But, obviously, as you can imagine, I am doing my absolute best to figure out what’s going on.”
Later on Wednesday, in a letter to Jesse Furman, a federal judge in New York, lawyers for the Justice Department confirmed Trump’s about-face in a convoluted sentence, writing, “The Departments of Justice and Commerce have now been asked to reevaluate all available options following the Supreme Court’s decision and whether the Supreme Court’s decision would allow for a new decision to include the citizenship question on the 2020 Decennial Census.” They added that, if necessary, they’d return to the Supreme Court to seek further guidance on how to proceed should the Administration come up with “a new rationale” for asking about citizenship.
The Supreme Court may be partly responsible for this confusion. Chief Justice John Roberts, in a fractured opinion, refused to say that Ross’s quest to inquire about citizenship in the census was “substantively invalid,” per se. Yet a five-Justice majority found that the reasons that Ross offered were “pretextual” under the Administrative Procedure Act, a statutory guidepost that has tripped up the Trump Administration in a series of controversial cases. “The reasoned explanation requirement of administrative law, after all, is meant to ensure that agencies offer genuine justifications for important decisions, reasons that can be scrutinized by courts and the interested public,” Roberts wrote for himself and the four more liberal Justices. “Accepting contrived reasons would defeat the purpose of the enterprise.”
According to Roberts, Ross’s rationale—that the Justice Department needed citizenship data from the Census Bureau to better enforce the Voting Rights Act of 1965—was phony. But a different majority of the court, with Roberts and the Court’s four conservatives, declined to call Ross’s process—including his overruling of Census Bureau experts who had found that a citizenship question would compromise the census’ integrity—“arbitrary and capricious.” The conservative majority declared, “That decision was reasonable and reasonably explained, particularly in light of the long history of the citizenship question on the census.” In other words, the way Ross went about obtaining more complete citizenship data through the census isn’t inherently unlawful.
The only real hurdle the Trump Administration faced after the Supreme Court’s ruling was the absence of a true rationale for adding the question. TheWall Street Journal reported, though, that Administration officials concluded that adding it was not possible “given the high court’s decision, the printing deadline and other unresolved legal issues tied to the case.” Trump, determined to include the question, contradicted the lawyers and had Administration officials work through the Fourth of July holiday, trying to find options for proceeding. There may not be one, no matter what position the Administration adopts. Late on Sunday, the Justice Department issued a cryptic statement, saying that it was changing the entire legal team assigned to the census case. The announcement fuelled further confusion about what the Administration’s next steps will be.
The only person who seemed clear on how to proceed was Judge Hazel, in Maryland. The census case he is overseeing didn’t go to the Supreme Court, but he has been considering whether racial discrimination was one of the motivating factors driving the Administration’s decision-making, based on evidence that surfaced in May suggesting that gathering citizenship data would disadvantage Latinos and help “Republicans and non-Hispanic whites.”
On July 5th, Hazel let the litigation proceed in that direction, allowing the plaintiffs to question under oath as many as five Administration officials and to seek relevant documents. “Plaintiffs’ remaining claims, are based on the premise that the genesis of the citizenship question was steeped in discriminatory motive,” Hazel wrote. This means that, in effect, the battle over the legality of the citizenship question isn’t just one of administrative law, it is now about civil rights.