Trump's citizenship census question battle is legally dubious. But he may have already won the war.

The longer the words “citizenship” and “census” appear in the news, the better it is for Trump and Republicans.
Image: President Donald Trump in the Oval Office on June 25, 2019.
President Donald Trump in the Oval Office on June 25, 2019.Mandel Ngan / AFP - Getty Images file
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By Jessica Levinson, professor at Loyola Law School

The Trump administration has already sowed such strong seeds of distrust in our government that regardless of whether or not a citizenship question appears on the next census, it’s possible people in immigrant communities may be too scared to participate. If this happens, they will be partly invisible to the federal government; Ghosts who live and work among us who aren’t counted as residents. This undercounting will lead to fewer federal funds, members of Congress, and electors for the Electoral College in states with large immigrant populations. And that is exactly what the Trump administration intended.

Chief Justice John Roberts, writing for a 5-to-4 majority of the court June 28, said that Secretary of Commerce Wilbur Ross’ alleged reason for wanting to include a question about citizenship on the census — to enforce the federal Voting Rights Act — “appears to be contrived.” This is polite Supreme Court justice speak for “you lied,” a powerful rebuke.

Regardless of whether or not a citizenship question appears on the next census, it’s possible people in immigrant communities may be too scared to participate.

But Roberts didn’t entirely close the door to the Commerce Department. The majority of the court sent the case back down to a lower court that is examining whether the Commerce Department can provide a different valid reason for wanting to include the citizenship question in the census. In other words, you can’t obviously lie to Roberts’ face — but you may be able to lie if he can turn a blind eye to that lie.

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The Trump administration and the Justice Department have fewer legal options going forward. They could try to discover (aka create) a new, valid legal reason for adding the citizenship question, or Trump could try to issue an executive order to add the question. Neither of these options are likely to succeed, but that may not be the point. The longer he can keep this fight alive, the better it is for him politically. The citizenship question is popular with Trump’s base, and that is who he is focused on as the 2020 campaign continues.

A few days after the court’s ruling, the issue seemed dead. But Trump, perhaps understanding that this would look like a big legal and political loss, had other plans, tweeting that in fact the administration was “absolutely moving forward” with the plan to include the citizenship question on the census. This tweet caught the eye of a U.S. district court judge in Maryland, George Hazel, one of the three district judges to hear arguments in the citizenship question. Indeed, appearing before Hazel, one career attorney at the Justice Department spoke for many when he said July 3: “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.”

By July 5, the Justice Department told Hazel said it was “instructed to examine whether there is a path forward, consistent with the Supreme Court’s decision, that would allow for the inclusion of the citizenship question on the census,” and asked that the case be stayed while they searched on that path. Presumably taking this path includes looking under rocks, between nooks and crannies, and really anywhere that a valid reason to include the citizenship question might be hiding.

This request for an extension puts the Justice Department in a bit of a pickle, as it had long claimed that June 30 was a hard deadline to determining whether or not the census would be printed with the citizenship question. In fact, this alleged tight timeline is why the Trump administration demanded a quick review of the census case by the Supreme Court. It now, however, appears that time is no longer of the essence.

Hazel was having none of it, and he concluded that the parties must proceed on the legal question now pending before him — whether the Trump administration acted with a racially discriminatory purpose against Hispanics in its decision to add the question to the census. The question is based in part on newly obtained documents that indicates what everyone already knew: adding the citizenship question was about bolstering non-Hispanic white Republican voting power.

One can imagine another attorney general would counsel the president that, legally speaking, the administration is between a rock and a concrete slab. But Attorney General William Barr has stated that the Trump administration should pursue an alternate explanation for adding the citizenship question.

If it feels like we have gone down the rabbit hole, you’re not imagining things. Indeed, it is not at all clear what the path forward is for the Justice Department and the Trump administration, and that is why the Justice Department sought to replace the attorneys who had worked on the census case with a new crop of attorneys. To characterize this move as extraordinary would be an understatement. But Tuesday, Judge Jesse Furman rejected the majority of that request. Furman said the bid to replace the attorneys was “patently deficient.” Once again, it is up to the judiciary to do its job and act as a check against the executive branch.

Trump has also claimed that he is considering an executive order to put the question on the census. This is likely a no go. First, because the Constitution specifically gives Congress, not the president, power over the census. Second, because it is not at all clear how Trump can come up with an adequate (in other words, legal) reason for wanting to include the question. He would need this reason to get around the Supreme Court’s concern that the Commerce Department lied when it said it wanted to include the question to help enforce the Voting Rights Act.

But again, if the intent was to stop immigrants from filling out the census, it’s already working. The longer the words “citizenship” and “census” appear in the news, and the longer it looks like there is even the slimmest of chances that the census will include the question, the better it is for Trump and Republicans. No matter what happens in federal court, the Trump administration may have already assured there will be an inaccurate count of who lives in our country with very real political consequences.