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Wednesday, July 03, 2019

More action on the census (Edited)

The citizenship-question case is heating up, following a tweet from the President denouncing as fake news reports that the administration had stopped pursuing efforts to place the citizenship question on the 2020 census. This despite DOJ attorneys having represented that fake news to plaintiffs' counsel and the district court as the government litigation position. This did not sit well with Judge Hazel (D.Md.), who held an on-the-record telephone conference to find out what is going on (as was the attorney for the government).

Judge Hazel questioned whether the government attorneys were speaking for their client at this point. He responded skeptically to the plaintiff's suggestion that he enjoin government officials (presumably including the President) from tweeting or otherwise speaking contrary to the government's litigation position or to requiring the Census Bureau or Commerce Department to publicly counteract any contrary tweets from the President.

The court gave the parties until Friday to submit either a stipulation that the citizenship question will not appear on the census or a scheduling order for litigating the equal protection issues (denying, with a sharp "no," the government's request to have until Monday). Meanwhile, Judge Hazel confirmed that the injunction prohibiting the government from printing questionnaires with a citizenship question remains in place, meaning the President is flirting with ignoring (or ordering underlings to ignore) a court order. On the other hand, government attorneys suggested they may go back to SCOTUS for a motion "clarifying" (or "undercutting," from the plaintiffs' standpoint) the Court's remand decision.

The court declined to do anything to get a firmer answer on whether June 30 (last Sunday) remains the drop-deadline by which the government must have the census form finalized (as the government has insisted throughout the litigation-he suspected "we're not going to get a useful answer to that question." But the court made clear that he did not blame the attorneys for this confusion.*

[*] Another way departmentalism remains in check, at least with a normal President. DOJ lawyers do not like getting yelled at when the executive officials they represent go off the rails. With a normal President, the attorneys can try to exert some control over the client. Or, with an abnormal President, they could resign or refuse to carry out his inappropriate wishes. Neither is happening here.

Posted by Howard Wasserman on July 3, 2019 at 08:58 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink


Prof. Banzafh, That seems plausible but it seems to me that the estoppel argument is strong. The judge accepted and relied on the governments representation that the drop dead date was the 30th and this disadvantaged plaintiffs with respect to discovery (including, I believe on other issues like equal protection that wouldn’t be mooted by new rational).

So yes, that’s probably what they should have done from the start and it seems likely it would have been persuasive but the government should be bound by the litigating positions it takes and gains advantage from.

Posted by: Peter Michael Gerdes | Jul 8, 2019 5:34:04 AM

There are several rationales - including one based upon the Constitution itself - which could well still persuade the courts to permit a citizenship question on the census, especially if the explanation were included in the executive order now being considered, rather than in some new declaration by the Secretary of Commerce.

Although the Supreme Court refused to permit its inclusion based upon the "sole," "contrived" and "pretextual" rationale offered by Secretary Wilbur Ross, it is clear that the question could still be included if a legally acceptable - not necessarily persuasive or even well-supported - basis could be offered.

After all, the famous and widely followed 1947 Supreme Court Chenery case held that an agency can rescue a decision shot down for an unjustified rationale simply by subsequently advancing a new and legally acceptable basis for reaching exactly the same conclusion.

Issuing a new executive order mandating the inclusion of the citizenship question on the census would have many advantages over trying to have the Secretary himself react:
* because a president's views are entitled to substantially greater legal deference, his rationale for including the questions is much more likely to be accepted by the courts
* a president's decision making process is largely shielded from the legal discovery which exposed Ross's explanation as "contrived" and "pretextual"
* President Donald Trump, unlike Ross, would not have to backpedal and undercut earlier contrary official statements to come up with acceptable rationale for including the question
* courts are less likely to formally accuse a sitting president of lying than a cabinet secretary.

To survive judicial scrutiny, the rationale for including the question - especially if offered by the President - does not have to be supported by any evidence in a formal record or otherwise, nor need it even seem, to judges, to be persuasive, well reasoned, or a completely honest explanation.

Here, as the Court explained, the Secretary, "in these unusual circumstances," had said that his sole justification was to help enforce the Voting Rights Act, and that was disproved by strong evidence.

In all other circumstances, virtually any explanation which is not completely frivolous on its face would have to be upheld by the Supreme Court as within a president's vast unreviewable discretion.

Thus, for example, President Trump might simply say in an executive order that he needs citizenship information to help him make a variety of executive decisions, or to better understand the nature and extent of the illegal immigrant problem, to examine on a state-by-state basis the percentage of illegal aliens compared with "persons" now as compared with previous censuses where the citizenship question was asked, etc.

Since none of these reasons appears, on its face, to be frivolous or "pretextual," courts would have little valid legal basis to challenge his executive order.

But there is another possible rationale which was discussed by legal experts even before the recent Supreme Court decision.

While much of the Supreme Court argument about the census involved whether adding a question about citizenship might result in an inaccurate count of the "whole number of PERSONS [presumably including illegal aliens] in each State," little if any attention seems to be directed, at least according to law professor Eugene Volokh, to the 14th Amendment which requires that representation must be reduced, if voting rights are denied, in proportion to the number of CITIZENS voting in elections. [emphasis added]

As law professor Josh Blackman pointed out, this constitutional mandate in Clause 3 of Section 2 seemingly provides a very plausible justification for asking about citizens status.

Otherwise how could "the basis of representation therein [shall] be reduced in the proportion which the number of such male CITIZENS shall bear to the whole number of male [presumably today including female] CITIZENS twenty-one years of age in such State." [emphasis added]

Thus, in addition to counting the whole number of PERSONS (including illegal aliens) to serve as a basis for apportionment, it appears that the government could also count CITIZENS to serve as a basis for possibly adjusting representation; presumably at the same time, and logically and logistically in the same census form, rather than otherwise.

There is also a strong argument from legislative history for this position, at least according to law professor Kurt Lash. He notes that Rep. Thaddeus Stevens, in discussing what would become Section 2, stated that "a true census of the LEGAL VOTERS shall be taken at the same time with the regular census." [emphasis added]

He also noted a famous speech about the 14th Amendment by Senator Jacob Howard who said that "where a state excludes any part of its male CITIZENS from the elective franchise, it shall lose Representatives in proportion to the number so excluded," and repeatedly remarked about the role played by the census in enforcing this requirement. [emphasis added]

So another rationale likely to withstand judicial scrutiny, especially since it has a historical basis and was suggested by experts even before the Supreme Court addressed the issue, might be based upon the 14th Amendment's concern about the voting rights of citizens, and the need to know how many citizen voters there are in each state.

Finally, although a federal judge has set a 2:00 PM Friday deadline for the government to stipulate that it will no longer seek a citizenship question, any failure by the Justice Department to take any definitive action by that time would not preclude an executive order next week or even next month.

The only consequence if the Department of Justice failed to enter into a stipulation would be that Judge George Hazel would reopen the case before him to pursue new issues.

But any potential executive order by Trump, next week or even later, would not be directly affected by whatever Hazel may conclude regarding Ross and his rationale.

An executive order mandating the controversial question could be issued next week, or possibly even later, because, as the New York Times reported, "one senior census official has said the bureau could wait until as late as Oct. 31 to begin if necessary," and a president who can find millions of dollars for a parade can presumably find additional funds if necessary to reprint census forms which might have already begun printing.

Posted by: LawProf John Banzhaf | Jul 5, 2019 11:14:00 PM

Howard, you continue to respond to President Trump's actions as if he (the President) is a rational person.

Posted by: Paul | Jul 3, 2019 9:33:46 PM

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