This is what it’s like working for a madman:
Suppose you’re a lawyer at the Department of Justice. You’ve worked there for 16 years, serving Democrats and Republicans alike. And, in a contentious lawsuit about the census, you tell the judge that, following last week’s landmark Supreme Court decision, the government has abandoned its plans to change the census to ask about citizenship and is printing the forms without the question now.
Everyone verifies this is true: the Commerce Department, including Commerce Secretary Wilbur Ross himself, the Census Bureau, and your colleagues at the DOJ.
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Then, when you’re away for July 4 vacation, the president says that’s fake news.
What do you do?
If you’re Joshua Gardner, special counsel at the Department of Justice, you tell the judge—on the phone, after the judge read the tweet and asked for an impromptu hearing—that “I’ve always endeavored to be as candid as possible with the court. What I told the Court yesterday was absolutely my best understanding of the state of affairs… The tweet this morning was the first I had heard of the President’s position on this issue…. I am doing my absolute best to figure out what’s going on.”
So are we all.
Meanwhile, Gardner added, “the Census Bureau is continuing with the process of printing the questionnaire without a citizenship question, and that process has not stopped.”
The census controversy has officially degenerated from (averted) tragedy to farce.
The controversy, to briefly review it, centers on the Trump administration’s effort to add a question about citizenship status to the census form. That may seem innocuous on its surface, but the government itself estimated it would decrease Hispanic participation by more than five percent, leading to fewer government resources and less congressional representation in areas with large Latino populations—most of which just happen to be in predominantly Democratic states and districts.
Last week, the Supreme Court called Trump’s bluff. The court held that a citizenship question could, in theory, be valid, legal, and constitutional. However, Chief Justice Roberts continued, the government had lied, over and over again, about the real reason for adding the question to the census. That violated the law.
As observers noted at the time, that was a temporary victory, not a permanent one. Activists had hoped that the question would be deemed unconstitutional, because depressing the count would violate the constitution’s requirement that all persons in the United States be counted—the “enumeration clause.” But they lost on that count.
So, the door was left open just a crack.
The problem is, the government has said throughout this litigation that it needed to start printing the census forms by July 1. So, even if it could come up with a valid, truthful reason for adding the question, there was basically no time to do it.
That’s why, as soon as the Supreme Court decision was announced, the Census Bureau said they’d start printing the forms, citizenship question omitted.
Even Tuesday, when major news media outlets reported the Trump administration had dropped its plans, that wasn’t quite true. What various lawyers had said (there are actually two major lawsuits, the one in New York which went to the Supreme Court, and another in Maryland where Wednesday’s absurd hearing was held) was that the forms were being printed.
That’s not the same as “we give up, now and forever.”
So, in a way, Trump was right. Perhaps the 2020 forms are being printed now, but the administration will continue the fight. Or perhaps the White House thinks it can spend additional money to print a new set of 2020 forms in a few months, after it’s had time to concoct a new rationale for the change.
That’s not really possible—any new justification would be challenged, just like the last one was, and the court battle would stretch into 2020 itself. It’s a logistical impossibility.
But trying anyway would prolong the political battle, allowing Trump to score more points with his base.
Remember, the citizenship question seems like commonsense. Why not ask for this information? There’s an easy answer to that, but numerous Republican members of Congress have kept asking it anyway, insinuating that Democrats have something to hide, or are soft on illegal immigration, or whatever.
Moreover, as some advocates have noted, just having the president tweet about the citizenship question could, itself, deter some people from responding to the census. It’s entirely reasonable for folks to wonder: What are they asking? Would that get my family in trouble? And why risk it?
So, prolonging this battle makes political sense, even if there is no way to actually win it.
The lawyers in the New York case have been tap-dancing just like the ones in Maryland. In a letter filed with the judge in that case, they said that, yes, the forms are being printed, but:
<p>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. The agencies are currently performing the analysis requested, and, if they determine that the Supreme Court’s decision does allow any path for including such a decision, DOJ may file a motion with the Supreme Court seeking further procedural guidance…</p>
Notice that passive tense—the departments “have now been asked to reevaluate.” Asked by whom? By the president on Twitter?
Where to now?
In terms of the census, there is no way on God’s green earth that a citizenship question will be on the 2020 form. Notice that even today’s filing is conditional—if there’s a way to do this, the government may file a motion. Because everyone knows there’s no way.
But the government will “perform the analysis requested” anyway, because doing so is politically expedient, and might just scare a few Latinos from responding. And most of all, because the president just tweeted that they would.
Welcome to the madhouse.
