Census Blocked, Trump Will Not Be Denied Immigrant Data

Donald Trump had insisted on having his own way, and no Supreme Court of the United States was going to get in that way. In his quest to reduce the American government to a single branch, with the other two just looking on, he rejected the court’s disallowing a question in the 2020 census that would ask every one of us if we are a citizen. The president took to Twitter, and with his peculiar chant at the end he seemed to say that the Supreme Court is not patriotic:

Changes in government practices need good reasons — the Administrative Procedure Act spells that out — and the high court found that Wilbur Ross and his Commerce Department, which runs the census, had effectively lied to the court about the reason for including the citizenship question. The justices ruled 5-to-4, with Chief Justice John Roberts the swing vote against the four to his right, that the stated reason for the question was "contrived" and "pretextual".

The Justice Department was put to work by Trump to find a way around the court's prohibition, even to the point of trying to swap in a whole new contingent of lawyers when the first group failed to come up with an end run. Ultimately they surrendered, finally perhaps realizing that any new rationale for their citizenship question would simply be viewed by the court as Contrived # 2.

But Trump needed cover for his retreat; it can never appear that he lost. So he issued an executive order to all agencies that citizenship data be compiled from existing government sources. "Not only didn't I back down, I backed up because anybody else would have given this up a long time ago", Trump told reporters. In his inadvertent way, Trump fully admitted that the real reason for the citizenship question was not to identify citizens for enforcement of the Voting Rights Act, the original false pretext presented to the court, but to scare off non-citizens from taking the census, thus undercounting the people in states with large immigrant populations:

"Far left Democrats in our country are determined to conceal the number of illegal aliens in our midst...This is probably part of a broader effort to erode the rights of the American citizen".

Unaccountably at his side in the Rose Garden was Attorney General William Barr. His Justice Department should be in hiding for having provided the phony "contrived" Voting Rights Act reason for the citizen question. Instead he obsequiously congratulated the president for signing the order. It will "ensure that we finally have an accurate understanding of how many citizens and non-citizens live in our country", he said, a matter of no concern to Justice. Trump said of his backup plan, "It works out actually better...It will be, we think, far more accurate". Then why, one might ask him, did you, Ross, and Barr spend a year and a half in the battle over using the census?

It had been another of several instances of Trump attacking the courts, a justice system he thinks is "a joke", and "a laughing stock". He claimed he couldn't get a fair trial from the "Mexican" judge in San Diego because of his plans for a wall (the judge has a Latin name but is an American born in Indiana). He lashed out against the 9th Circuit when it blocked his first travel ban against seven Muslim countries. And the Supreme Court drew a tongue-lashing. Talking to reporters outside the White House, Trump lamented:

"We're spending 15 to 20 billion dollars on a census. We're doing everything. We're finding out everything about everybody. Think of it: 15 to 20 billion dollars and you're not allowed to ask them, 'Are you a citizen?'."

Job #1

The census is a big deal. Our earlier article on the dispute began,

“It’s Job #1, the first thing the newly adopted Constitution in 1789 instructed the United States to actually do, so important that it’s the document’s 6th sentence.”. It orders that an “actual Enumeration shall be made” of inhabitants every 10 years in order to apportion to the states, based on their “respective numbers”, delegates to the House of Representatives.

It is also used to allot proportionate funding to the states on the order of $900 billion for a broad array of programs.

Because of its importance, the census contingent of the Commerce Department takes pains to get it right. No change is made without sampling focus group reactions and conducting field tests to make certain that a question or a checkbox doesn’t meet with some unexpected reaction or bias to taint the survey's results. Yet Trump intended to blow past all that and just issue an executive order.

On the Tuesday before the July 4th holiday, Commerce Secretary Wilbur Ross and lawyers from the Justice Department acceded to the Supreme Court ruling, and the printing of the census forms, up against a deadline for the long census-taking process, began without the question. Then came the following tweet:

William Barr’s Justice Department jumped in to reverse the decision of his own department of the day before. That's what set in motion the attempt at an end run and the ultimate retreat behind an executive order.

The “enumeration” is to count every man, woman, and child in the U.S. The Constitutional mandate says nothing about citizens. The Trump administration, with Ross as point man, wanted to use the census question to induce undocumenteds to go into hiding, to not respond to the census at all, fearful that a “no” response will identify them for deportation, or a “yes” would lead to that plus a jail term for fraud. The right wing and the Trump administration would have celebrate the undercount that the question would have produced in states with large migrant populations such as California and New York. Those states would all experience lower funding allocations, but the big payoff could have been that a few states could lose representatives in the House, with the red states taking away those seats for themselves.

The administration didn’t admit to that reason, of course, until we heard Trump just blurt it out. Ross lied to Congress about those actual origins of the citizenship question and faces a contempt citation. He concocted with William Barr’s Justice Department the phony story that the citizen count is needed by Justice for enforcement of the Voting Rights Act of 1965, an assertion that might cause one to ask however did they manage without it for 55 years? That fabrication was even refuted by a member of the Justice Department itself, who said in sworn testimony before Congress that citizenship data was never needed by the Act. Internal government documents surfaced in a New York lawsuit that the White House had begun discussing inclusion of the question right after the Trump administration took office, primarily at the instigation of then-chief strategist and immigration opponent Stephen Bannon. If there was any doubt that the citizenship question was meant to tip the census in favor of Republicans, it was dispelled when the estranged daughter of a deceased redistricting strategist released her father’s files containing a seminal 2015 report saying that amending the question "would clearly be a disadvantage to the Democrats" and would be "advantageous to Republicans and non-Hispanic Whites".

Three federal judges in three states ruled that Wilbur Ross violated the law when he ordered the Census Bureau to add the citizen question, yet four hard right justices on the Supreme Court ruled in Ross’s favor. Before backing down, President Trump wasn’t even bothering with trying to find a legal way. He said he would simply issue an executive order adding the question to the census. Get that: an executive order to circumvent the Supreme Court to deliberately cause a short count of the Constitutionally mandated enumeration of everyone in the country with the motive of strengthening Republican states to the detriment of Democratic states.