Trump Expected to Sign Executive Action Regarding Census Citizenship Question

President expected to lay out plan in news conference in the White House Rose Garden Thursday afternoon

WASHINGTON—President Trump is expected to sign an executive action regarding a citizenship question on the 2020 U.S. census, according to administration officials, a move that could prompt immediate challenges in court.

The president is expected to lay out his plan in a news conference in the White House Rose Garden Thursday afternoon.

The Trump administration has been considering several options to add such a question to the census in the wake of a Supreme Court decision that stymied its push to do so. Mr. Trump said last week the White House was working on a possible executive order.

“An executive order is the fastest way he can do something,” the administration official said Thursday.

Administration officials, who said the situation remained fluid Thursday morning, provided conflicting information about what the president planned to announce.

Congressional Democrats have already indicated they would oppose such a move. Sens. Jack Reed (D., R.I.) and Brian Schatz (D., Hawaii) wrote in a letter to Attorney General William Barr and Commerce Secretary Wilbur Ross on Tuesday asking that they “immediately cease consideration of an executive order or any other means of adding a citizenship question.”

House Speaker Nancy Pelosi (D., Calif.) said Thursday the House would vote next week to hold Attorney General William Barr and Commerce Secretary Wilbur Ross in contempt for ignoring a congressional subpoena seeking information about the citizenship-question effort. Mr. Trump invoked executive privilege over documents on how the question was added to the census after they were requested..

The news conference will be the latest chapter in a monthslong saga over the administration’s efforts to add such a question to the census.

The Supreme Court in a 5-4 ruling last month blocked the citizenship question on procedural grounds, with Chief Justice John Roberts writing that the evidence that had emerged on Commerce Secretary Wilbur Ross’s decision-making process “tells a story that does not match the explanation the secretary gave.”

The court’s decision said the Trump administration had the authority to ask about citizenship on the census—if it had valid reasons for doing so and could explain and support those reasons with candor.

After considering their legal options and facing a deadline to print the census forms, the Commerce and Justice departments announced last week that the fight was over and the forms were being sent to the printer without the question.

That night and the following morning, Mr. Trump called the accurate reports of administration statements in federal court “fake news,” adding that all possibilities were still being explored.

In private conversations with his advisers, Mr. Trump last week said he had never approved ending the effort to add a citizenship question to the census and blamed his administration for poorly communicating what was happening. Pointing to the Commerce Department’s announcement that it was starting to print the census without a citizenship question, Mr. Trump said, “Yeah, we’re printing, but we can always go back and add a question,” according to an administration official.

Government lawyers appeared surprised by the president’s tweets and apparent decision to continue pressing the issue. “I am doing my absolute best to figure out what’s going on,” attorney Joshua Gardner told U.S. District Judge George Hazel.

Since then, the Justice Department has reopened efforts to examine the president’s legal options for adding a citizenship question to the census. On Sunday, the department sought to shift the case to a different team of government lawyers, which Attorney General William Barr said was because some lawyers on the case felt uncomfortable continuing after telling courts the citizenship question would be dropped, only to be contradicted the following morning by the president.

Judges in Maryland and New York rejected the plan to switch legal teams in the census case.

The citizenship question hasn’t been asked on the main census form since 1950, although the Census Bureau collects citizenship data through its American Community Survey. The survey, which some 3.5 million households are required to complete annually, is used by federal, state and local policy makers, along with businesses, nonprofits and academic researchers.

Plaintiffs who challenged the citizenship question in multiple courts argued the Trump administration acted in bad faith to add a question that would disadvantage Hispanics and the communities in which they reside. The plaintiffs contend that recently discovered evidence traces the question to a Republican political strategist whose research indicated it would help shift political power to white voters and Republicans in redistricting.

Conservative lawyers in recent days have suggested several possible legal strategies the White House could rely on for the action.

Lawyers David Rivkin and Gilson Gray, writing in The Wall Street Journal opinion pages, suggested the president sign an executive order stating that a citizenship question is necessary to enforce Section 2 of the 14th Amendment, ratified in 1868 to deter former Confederate states from keeping African-Americans from voting. The provision reduces a state’s allocation of congressional seats in proportion to the number of citizens denied voting rights.

Congress never passed implementing legislation, and the federal government never has sought to enforce the provision. The official Constitution Annotated, a resource published by the Congressional Research Service, called the section “little more than an historical curiosity.”

Radio host Hugh Hewitt has proposed justifying a citizenship question based on the fact that many of the Democratic candidates in a televised debate last week expressed support for expanding Medicare to younger U.S. citizens and certain noncitizens.

Democrats have dismissed such proposals as absurd. Rep. Jamie Raskin (D., Md.), a former law professor, said last week that there was likely no way to fix the flaw identified by the Supreme Court—that the administration flouted the policy-making process, which requires candor and a reasoned basis for agency decisions.

It’s Not Nice to Lie to the Supreme Court

The decision in the census case suggests President Trump can no longer take the court for granted.

A cynic might say that with his two major decisions on the last day of the Supreme Court term a week ago, Chief Justice John Roberts saved both the Republican Party and the court — first by shutting the federal courts’ door to claims of partisan gerrymandering, a practice in which both political parties indulge but that Republicans have perfected to a high art, and then by refusing to swallow the Trump administration’s dishonest rationale for adding a citizenship question to the 2020 census.

President Trump, having placed two justices on the Supreme Court, had taken to treating the court as a wholly owned subsidiary, and not without some justification. It was the court, after all, in an opinion by Chief Justice Roberts, joined by the other four Republican-appointed justices, that saved the president’s Muslim travel ban a year ago. But the chief justice’s opinion in the census case last week blew a hole in what appeared to be a protective firewall that the president can no longer take for granted.

I’m not joining the cynics, especially now that the citizenship question is dead — or so it seemed on Tuesday, based on the Justice Department’s assertion to the federal district judge handling a companion case in Maryland that the census forms were being printed without the citizenship question. On Wednesday, a furious President Trump ordered the Justice Department to reverse course; what followed was a telephone colloquy between that federal judge, George Hazel, and the lawyers for which the word bizarre is a breathtaking understatement. “I can’t possibly predict at this juncture what exactly is going to happen,” Joshua Gardner, a Justice Department lawyer, told the judge, who gave the administration until Friday afternoon to get its story straight.

It would take a heart of stone not to feel sorry for the administration’s lawyers, faced with defending the indefensible. As they recognized 24 hours earlier, the chief justice’s opinion in fact left no wiggle room. Once the behavior of Wilbur Ross, the secretary of commerce, was called out by the Supreme Court of the United States, the president was trapped — and now his lawyers are caught in his net. Maybe they can find a way around the chief justice’s decision, but I don’t think so.

Here’s why: Once the court rejected the administration’s stated rationale as phony — or “contrived,” as Chief Justice Roberts put it more politely in agreeing with Federal District Judge Jesse Furman that improved enforcement of the Voting Rights Act was not Secretary Ross’s real motive — the administration might have tried to come up with some other politically palatable explanation. That would almost certainly have failed, because courts generally will not accept what they call “post hoc rationalizations,” explanations cooked up under pressure and after the fact. But even if such a ploy had succeeded, its very success would have proved Secretary Ross to have been a liar all along.

The citizenship question is now history, fortunately, but this whole episode is too fascinating, too important for the country and the court, to put behind us just yet. So in this column, I want to probe the census decision itself, both for what it tells us about the court and for what it might suggest about the next test of the relationship between the president and the court that he has so recently regarded as his very own. That is the question of the validity of the president’s rescission of the program known as Deferred Action for Childhood Arrivals, or DACA, the Obama-era policy that now protects the “dreamers,” some 700,000 young undocumented people brought to this country as children, from being thrown out of the only country they have ever known. The court will hear that case in its next term, and there are some striking parallels with the census case that just might leave the Trump administration empty-handed again.

But first, the census case. I’ve been obsessed with imagining whatever dark night of the soul preceded the chief justice’s last-minute decision to shift course and reject the administration’s position.

I readily admit that I have no sources for the claim I just made. I have no proof that Chief Justice Roberts initially voted with the administration and talked himself out of that position sometime during the two months that elapsed between the April argument and the June decision. But I’ve been reading Supreme Court decisions for a very long time, and the opinions that provide the holding — the chief justice’s plus the partially concurring opinion of Justice Stephen Breyer for the court’s four liberals — have all the hallmarks of judicial tectonic plates that shifted late in the day to produce an outcome that none of the players anticipated at the start.

To begin with the chief justice’s opinion: The first 22 of its 28 pages are an argument for why the decision by Secretary Ross to add the citizenship question to the census was a reasonable one that fell squarely within his authority. Noting that Mr. Ross rejected the advice of Census Bureau experts and decided to proceed despite the risk of depressing the response rate, Chief Justice Roberts writes, “That decision was reasonable and reasonably explained, particularly in light of the long history of the citizenship question on the census.”

Then suddenly, on page 23, the opinion’s tone changes as the chief justice reviews the finding by Federal District Judge Furman that Secretary Ross’s explanation for why he wanted the citizenship question in the first place was a pretext. The official story was that it would help the Department of Justice — which was said to have requested the addition of the question — to better enforce the Voting Rights Act on behalf of members of minority groups. In fact, as Judge Furman determined from the evidence, it was Secretary Ross who solicited the Justice Department’s request, and whatever the secretary’s motivation, the reason he gave wasn’t the real one.

“We are presented,” Chief Justice Roberts observes dryly, “with an explanation for agency action that is incongruent with what the record reveals about the agency’s priorities and decision making process.” He continues:

“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. Accepting contrived reasons would defeat the purpose of the enterprise. If judicial review is to be more than an empty ritual, it must demand something better than the explanation offered for the action taken in this case.”

Justice Breyer’s opinion, joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan, is almost as long as the chief justice’s. Nearly all of it reads like a dissent, arguing that Secretary Ross’s rejection of his own experts’ advice made the addition of the citizenship question unreasonable as a matter of law, “arbitrary and capricious” in the language of the Administrative Procedure Act. Only in Justice Breyer’s concluding paragraphs is there anything that reads like a concurrence: “I agree that the pretextual nature of the secretary’s decision provides a sufficient basis to affirm the District Court’s decision to send the matter back to the agency.” It’s hard to read these few paragraphs as anything other than a last-minute addition to a carefully crafted dissenting opinion, one that had rather suddenly become superfluous.

There were two other opinions filed in the case, one by Justice Clarence Thomas that was joined by Justices Neil Gorsuch and Brett Kavanaugh, and another by Justice Samuel Alito. Both disagreed vigorously with the chief justice’s bottom line. All four opinions scrupulously avoided any mention of what everybody knew: that documents brought to light in the weeks following the April 23 argument showed that the citizenship question was part of a plan not to help minority groups vote, but the opposite. The plan was to create and entrench Republican majorities in state legislatures by providing data for use if the Supreme Court gives the green light to counting only eligible voters in legislative redistricting. Conservative groups are poised to send such a case to the Supreme Court in the near future, part of a strategy to keep rapidly diversifying red states like Texas from turning blue.

There is no doubt that the justices were aware of this late-breaking development; during the days leading up to the decision, one of the plaintiff groups challenging the citizenship question had filed a brief with the court detailing the findings from the computer files of a recently deceased Republican redistricting specialist. If I’m right about the chief justice’s late-in-the-day change of heart, did these revelations play a part, even a subconscious one? That’s more speculation than even I am willing to engage in. Suffice it to say that it’s hard to imagine the administration’s litigating position undermined in a more devastating fashion.

It’s that observation that brings me to the DACA case. The court will actually hear three DACA cases, consolidated for a single argument and decision. All three are appeals by the administration of rulings that have barred it from carrying out its decision, announced in September 2017, to “unwind” the program. At issue are two Federal District Court opinions and a decision by the United States Court of Appeals for the Ninth Circuit that upheld a ruling by a federal district judge in San Francisco, William Alsup. The opinions differ slightly, but all found that the administration’s termination of DACA for the reason the administration has provided would violate the Administrative Procedure Act.

Here’s where the administration is caught. Its stated reason, as expressed by the acting secretary of homeland security on orders from the attorney general at the time, Jeff Sessions, was that DACA lacked statutory authority and was unconstitutional. At the heart of the administration’s appeal is the assertion that the federal courts lack jurisdiction to interfere with the “Executive Branch’s authority to revoke a discretionary policy of nonenforcement that is sanctioning an ongoing violation of federal immigration law by nearly 700,000 aliens.”

That is a very difficult position for the administration to maintain because it presents to the courts a question not of policy but of law. The administration would have a strong case for judicial deference if it described its rejection of DACA as a matter of enforcement priorities that differ from those of the previous administration. But by claiming that “the law is making us do it,” the administration is serving up the federal judges a question at the heart of their jurisdiction: What does the law require?

As Judge John D. Bates of the Federal District Court in Washington observed in his opinion, the administration provided only a few sentences of legal analysis to back up its claim. “This scant legal reasoning was insufficient to satisfy the department’s obligation to explain its departure from its prior stated view that DACA was lawful,” Judge Bates explained.

So the question is why the administration failed to offer a policy-based explanation, one that might well have persuaded the lower courts and eased its path to the Supreme Court. One reason might have been to protect the president, who declared shortly after his inauguration that “we are not after the dreamers, we are after the criminals” and that “the dreamers should rest easy.” The reason for going after the dreamers had therefore to be based on a claim of pure law, not a change of heart.

A more cynical explanation — and here I’ll indulge in the cynicism from which I refrained at the beginning of this column — is that in claiming that revoking the policy is required by law and not preference, the administration seeks to avoid accountability for a position that, if it were to prevail, would predictably cause economic disruption and public dismay.

Many policy positions predictably affect hundreds of thousands or millions of people; had Republicans succeeded in gutting the Affordable Care Act, for example, millions of people would have been thrown back into the health care jungle. But we don’t know their names. The DACA recipients, by contrast, have names that are known, not only to the Department of Homeland Security but to their schools, their employers, their communities. One dreamer recently received a Rhodes Scholarship and will not be able to return to the United States from Oxford if the administration wins its case. Others with less exalted achievements are simply getting their degrees, holding down jobs, paying their taxes, raising some 200,000 American-born children and going about their lives in the country they regard as their own.

The dreamers will still be here next April, when the census takers come around; the Supreme Court decision will almost certainly not be issued by then. They will be counted along with the rest of us in the grand decennial enumeration that the Constitution’s framers decreed. And a year from now, we’ll know whether the court that could see through one Trump administration strategy is willing and able to do it a second time.