Saturday, July 6, 2019

Trump admin faces discovery in suit against census question

HuffPost email informs us that the Trump admin misses deadline to provide reason for census citizenship question.

That is pretty much in line with Trump’s (now) habit of thumbing his nose at the courts.

The Trump administration said on Friday it would continue to look for ways to add a question about citizenship to the 2020 census after missing a deadline to provide an adequate reason for it.

“The Departments of Commerce and Justice have been 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,” Justice Department lawyers said in a court filing Friday.

In response, U.S. District Judge George Hazel said that he will proceed with the process of discovery, a way for opposing parties to gather evidence, which could determine whether the Trump administration proposed the citizenship question with the intention of discriminating against minorities.

“Plaintiffs’ remaining claims are based on the premise that the genesis of the citizenship question was steeped in discriminatory motive,” Hazel wrote in a court order. “…Regardless of the justification Defendants may now find for a ‘new’ decision, discovery related to the origins of the question will remain relevant.”

They will indeed. Here is more about what might be exposed during discovery.

The fight over the 2020 census citizenship question, explained by The battle over a simple question involves both Congress and the Supreme Court. And the stakes are high.

The Commerce Department, which is in charge of conducting the census, claims it added the question in response to a request sent last fall by the Department of Justice, then headed by Attorney General Jeff Sessions, that asked for a citizenship question on the 2020 census. The DOJ’s reasoning, adopted by the Department of Commerce, was that to appropriately enforce the Voting Rights Act, the DOJ needs to know where eligible voters, and specifically eligible voters of color, live — and so they have to be able to distinguish citizens from noncitizens.

But critics of the Trump administration see a more political motive. Records exposed in a New York lawsuit over the census question made it clear that their skepticism was well founded, because Wilbur Ross and the Commerce Department, at least, hadn’t been telling the public the whole truth about the process.

Emails showed that for months, Ross himself had already been asking around about adding a citizenship question, and Commerce Department officials had tried to get other agencies involved to “clear certain legal thresholds.” In fact, Ross and the Department of Commerce had to ask the DOJ to send them that letter giving the Voting Rights Act rationale.

Furthermore, the emails showed, Ross was warned about potential downsides of adding a new question — most notably, concerns that it would warp the census results by discouraging noncitizens from responding. But the question was added anyway.

Another Trump tantrum

Greg Sargent (Washington Post/Plum Line) digs deeper and observes that Trump rages over his latest failure to corrupt our democracy - namely that he was not been able to get the citizenship question on the census. But Sargent has some tough questions about what went on to get the Justice Department to reverse course after the Supreme Court’s decision against Trump.

The Post reports that the president reversed his own administration’s decision “after Trump talked by phone with conservative allies who urged him not to give up the fight.”

Trump also ordered the reversal because he is “furious” over his administration’s quick surrender, officials tell The Post, adding that he believes the administration “had given up the fight too easily.”

Which raises a question: What is the true nature of this “fight” that conservative allies don’t want Trump to “give up,” and which Trump believes officials backed off from too quickly?

And for that matter who are those “conservative allies”?

Does anyone here think they’re “fighting” to better enforce the Voting Rights Act?

I submit that those allies are those who stand to profit. Not in the sense of “follow the money” but in the sense of “follow the power.” Ask, in this case, who stands to gain if the citizenship question suppresses census responding. Read on.

That, of course, is the rationale that the administration had claimed, but the Supreme Court last week blocked this effort, with Chief Justice John G. Roberts Jr. ruling that this rationale — put forth by the Commerce Department, which oversees the census — is “contrived.”

The move would likely bolster the Republican Party: A citizenship question could discourage people from households with noncitizens from responding, resulting in undercounts that skew representation and the awarding of federal dollars away from those areas.

Roberts agreed that the administration’s stated rationale was a pretext, writing that Commerce Secretary Wilbur Ross had made a decision early on to do this and had asked the Justice Department to request the change from him, giving him a reason to do it.

Reinforcing the administration’s bad faith, newly surfaced files from a deceased GOP operative who advised officials on adding the question revealed that he viewed this as a way to confer electoral advantage on Republicans and whites.

We also know that Stephen K. Bannon and Kris Kobach pushed the administration to do this early on, with Kobach piously insisting this was really about getting a more accurate count. That’s hard to believe, given that Bannon and Kobach are two of the most virulently anti-immigrant of Trump advisers.

Roberts had still given officials a way to keep the case alive, by sending it back to the lower courts, potentially leaving an opening for them to come up with a new explanation for the question to replace the “contrived” one.

But officials apparently saw this as a lost cause, and earlier this week, they confirmed they had dropped the quest to add the question. Which led to Trump angrily tweeting this was “FAKE,” forcing administration lawyers to scramble to revive the effort.

Administration lawyers may have sabotaged Trump

As part of this scramble, Justice Department lawyers told the courts that the Commerce Department may now adopt a “new rationale” for adding the citizenship question, and that the departments are trying to “reevaluate all available options” in the quest to find one. It’s unclear what this “new rationale” will be.

Daniel Hemel, a law professor at the University of Chicago, told me that this might have actually sabotaged Trump’s chances, because the stark admission that officials are looking for a replacement rationale underscores that it, too, will inevitably be offered in bad faith.

“The last thing you’d want to do if you were trying to convince the courts that your stated rationale is genuine is to tell a judge that you’re looking for a ‘new rationale’ to justify a policy decision you’ve already made,” Hemel told me. “They are essentially telling the courts that whatever rationale they come back with, it will still be pretextual.”

Hemel added that this very well might have been an act of “bureaucratic resistance.” Trump basically threw his administration’s lawyers “under the bus” by demanding a reversal, Hemel suggested, “and now they’re throwing him back under the bus.”

It’s possible that lower-court judges still hearing the case could now simply order the Commerce Department not to print any forms with the citizenship question, Hemel noted.

The administration would appeal this. But Hemel suggested it’s “more likely than not” that Roberts would support that decision.

“Roberts’s decision is premised on the idea that agencies need to state their real reasons for acting,” Hemel noted. He added that the admission that lawyers are now looking to “reverse-engineer a rationale for the decision” could lead Roberts to issue a final ruling against Trump.

Bad faith everywhere you look

Which brings us back to the question: What are conservatives and Trump keeping up the fight for, exactly?

We know from the established facts that this was never about enforcing the Voting Rights Act, and the courts have confirmed this view. Yet Trump ordered the lawyers to keep this battle going, anyway, in part because conservatives urged him to keep fighting, even though the original rationale has now been unmasked as fake!

Now that administration lawyers have admitted that they’re looking for still another pretext to justify this effort, those private conversations cast still more doubt on this whole exercise. Hopefully it won’t be too much longer until this farce is put out of its misery for good.

UPDATE: The AZ Blue Meanie posts a legal analysis this morning at Blog For Arizona, In reversal, Trump administration will try to argue a new ‘pretext’ for citizenship question on 2020 Census. For example:

So what happens now? First, it is important to remember that the Trump administration made an averment to two trial courts and the U.S. Supreme Court that the printing deadline for the census was July 1. The Supreme Court agreed to hear the appeal, bypassing the appellate courts (a rare occurrence) and added a constitutional question that the parties had not raised on appeal, based upon this averment. By seeking a delay in this case now, the Trump administration is making an admission that it lied to two trial courts and the U.S. Supreme Court. It has firmly established its bad faith before the federal courts, which is not going to gain the administration any favors from the federal courts.

… only asking about U.S. citizenship status would exclude some 13.2 million legal permanent residents (LPR) living in the U.S. as of the last midterm census in 2015, as well as the estimated 12.0 million undocumented aliens living in the U.S. as of the last mid-term census in 2015.

This would result in an intentional substantial undercount in the 2020 Census, and is unconstitutional. Section 2 of the 14th Amendment expressly provides, in relevant part, “Representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state, excluding Indians not taxed” — not citizens, but persons.

The whole point of the census is to get a snapshot of just how many people are in the U.S. at a given time.

UPDATE: The Justice Department lawyers are not being helped by the Twitter-troll-in-chief, who acknowledged on Friday that the “number one” reason for a citizenship question is “for districting.” He meant redistricting. That’s a problem because Solicitor General Noel Francisco told the Supreme Court that using citizenship data for redistricting was not the purpose of the census citizenship question. Trump is exposing the lie by saying out loud the voices he hears in his head.

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