President Donald Trump reportedly is considering executive action to add a citizenship question to the 2020 census, the latest in a series of surprising moves in what seems to be a Hail-Mary effort to get the query on the decennial survey.
Many are skeptical such action would be legal. The Constitution gives Congress the power to conduct the census, and Congress directed the secretary of commerce, who is appointed by the president, the authority to oversee the count.
The Supreme Court late last month thwarted Trump’s commerce department from having the citizenship question on next year’s census, and for a moment it seemed the matter was settled. But the president re-ignited the controversy, vowing to continue to fight for the question’s inclusion. And the Justice Department announced Sunday it was replacing the team of lawyers working on the case, a move that could signal concerns about the legal arguments the administration had been relying on to move forward on.
Attorney General William Barr said Monday he agreed with the president that the Supreme Court’s ruling was incorrect and that a pathway could be found for having its way on the citizenship question.
The executive order route, though, would seem a non-starter ― there are existing court orders barring the question, and Trump can’t just issue an edict wiping put such rulings.
Also, while the commerce secretary does have a considerable amount of power over the census, he is still constrained by federal administrative law, as well as other constitutional provisions, said Terri Ann Lowenthal, a census consultant who formerly worked as staff director of the House Census and Population Subcommittee.
″Congress cannot cede its constitutional responsibility for the census to the ... executive branch and president,” she wrote in an email.
The last-minute push underscores the Trump administration’s push to get a citizenship question on the 2020 census. Such a move, experts agree, would cause more people ― particularly minorities and immigrants ― not to respond to the count. Because the census is used to draw electoral districts and allocate over $880 billion in federal funds, a failure to respond would lead to diminished political power for those minority groups and increase it for their white counterparts who are more likely to answer.
In its June 28 decision on the citizenship question, the Supreme Court in a 5-4 ruling said the administration had failed to adequately explain why the query was needed on the census. While the court didn’t object to the merits of a citizenship question, Chief Justice John Roberts wrote that the administration’s official justification ― that it needed the information to better enforce the Voting Rights Act ― seemed to have been “contrived.”
Crucially, the court didn’t explicitly block the administration from adding the question. It ordered the case back to a lower court to give Commerce Secretary Wilbur Ross another chance to justify his decision.
Still, the issue seemed settled, especially when the Justice Department said on July 2 that census forms would be sent for printing without the question on them. The government said repeatedly in court it faced a hard June 30 deadline for sending the forms to the printer.
But a day later, in a move that caught the government’s own lawyers off guard, Trump said the administration would push ahead with trying to get a citizenship question on the census. Since then, he also seems to have abandoned the assertion that the purpose of the question was to aid in enforcing the Voting Rights Act.
“Number one, you need it for Congress — you need it for Congress for districting,” Trump said on Friday. “You need it for appropriations — where are the funds going? How many people are there? Are they citizens? Are they not citizens? You need it for many reasons.”
That reversal is significant. Civil rights groups have long alleged that the Trump administration wanted to add the citizenship question to intimidate minorities from responding and, as a result, diminish their political power. Currently, officials use the total population to draw districts, but some conservatives have pushed for years to only consider the citizen voting-age population when designing the political maps.
Adding a census citizenship question is a crucial first step toward that change in redistricting, according to a private 2015 memo written by the late Thomas Hofeller, a noted Republican redistricting expert. Such a change, Hofeller wrote in the memo, would harm Democrats and “would be advantageous to Republicans and Non-Hispanic whites.”
Plaintiffs who challenged the administration on the citizenship question say Hofeller helped persuade officials to embrace it for the census, an allegation the Justice Department denies.
If Trump did issue an executive order to add a citizenship question, it still would likely lead to a “dead end,” said Tom Wolf, a lawyer at the Brennan Center for Justice who has argued against adding the question.
“If the administration offers a new reason for the citizenship question now, it’s simply offering another after-the-fact justification for a policy decision it’s already decided it’s going to make,” he said. “And that is precisely the kind of pretext that the Supreme Court, if it said anything, clearly said in its opinion is illegal.”