Donald Trump’s handpicked Solicitor General, Noel Francisco, has a problem. After a New York federal court barred inclusion of a citizenship question on the 2020 census survey, he told the US Supreme Court repeatedly that June 30, 2019, was a firm deadline for printing the survey.
The Court believed him. For
the first time in 15 years, it took the extraordinary step of bypassing an intermediate
appellate court to expedite consideration of Trump’s case.
On July 3, Trump made Francisco look like a liar. By July 5,
he looked even worse.
Why It Matters
The US Constitution requires a census of the entire
US population (not just citizens) every 10 years as the basis for
allocating the number of seats that each state receives in the US House of
Representatives (and electoral votes in presidential elections). Those
allocations remain in place for the subsequent decade. The census also
determines how the federal government distributes billions in federal funds to
states and local communities. The survey goes to 100% of the nation’s
households.
Asking survey respondents about their citizenship would
discourage some from responding to it at all. For example, including the
question in the 2020 census would result
in an estimated undercount of 6 million Hispanics — or about 12 percent of
the US Hispanic population. According to a recent
analysis from Harvard’s Shorenstein Center and The Washington Post, the House impact would benefit Alabama,
Minnesota, Ohio, and Montana at the expense of California, Arizona, and Texas. “Similar
changes would hit state and local districts across the country when they are
redrawn using the same data,” the Post reports.
On March 28, 2017, the Census Bureau (part of the Commerce
Department) told
Congress that — as in prior years — the 2020 census survey would not include a
citizenship question.
Distorting the
Process
Then Trump politicized what has always been a non-political
exercise. The timeline tells the tale.
Spring 2017: Secretary
of Commerce Wilbur Ross discusses
with Trump adviser Steve Bannon and Attorney General Jeff Sessions the addition
of a citizenship question to the upcoming 2020 census survey. At the time, Jody
Hunt is Sessions’ chief of staff. (Special counsel Robert Mueller’s 2019 report
cites Hunt and his notes
frequently, including Trump’s reaction Mueller’s appointment in May 2017: “Oh
my God, this is terrible. This is the end of my presidency. I’m fucked.”)
May 2: Ross sends
an email to Commerce Department officials, stating, “I am mystified why
nothing have [sic] been done in response to my months old request that we include
the citizenship question. Why not?”
Ross can’t just add the citizenship question himself. He
needs a rationale.
Dec. 12: After trying
unsuccessfully to get the Justice Department and other federal agencies to seek
citizenship information through the 2020 survey, a Justice Department official
finally sends
such a request to the Census Bureau. The stated justification is to assist
in Voting Rights Act enforcement.
Jan. 20, 2018:
The Census Bureau’s chief scientist recommends
against including the requested citizenship question because it “is very
costly” and “harms the quality of the census count.” He notes that the
five-year American Community Survey already gathers better citizenship
information more efficiently.
Mar. 19: The
Trump campaign and the Republican National Committee tell
supporters that Trump wants a citizenship question on the census survey.
Mar. 20: Ross appears
before a House subcommittee where Rep. Grace Meng (D-NY) asks, “Has the
president or anyone in the White House discussed with you or anyone on your
team about adding the citizenship question?” Ross answers, “I am not aware of
any such.” Two days later, he tells
another House committee that the Justice Department “initiated the request” for
a citizenship question, omitting the extensive email trail proving otherwise.
Apr. 3, 2018: New
York state sues
to remove the citizenship question from the survey. Additional lawsuits follow.
Jan. 15, 2019:
Trump loses
the New York case, and the court bars the citizenship question from the survey.
Final Resolution
Required “by the End of June 2019”
Jan. 22, 2019:
Solicitor General Francisco asks the Supreme Court to bypass the appeals court
and hear the case. Francisco argues
that the government must finalize the census questionnaire for printing by the
end of June 2019. In subsequent
filings, Francisco invokes
the June 30 deadline repeatedly.
Feb. 15: The Supreme
Court agrees
— for the first time since 2004 — to bypass the appeals court and hear the New
York case directly.
“Contrived”
June 27: The
Supreme Court rules on the appeal. Saying that it expedited the case based on
Francisco’s claims that “the census questionnaire needed to be finalized for
printing by the end of June 2019,” the Court then doubts Ross’s
veracity:
“The evidence tells a story that does not match the explanation
that the Secretary gave for his decision. In the Secretary’s telling, Commerce
was simply acting on a routine data request from another agency. Yet the
materials before us indicate that Commerce went to great lengths to elicit the
request from DOJ (or any other willing agency)… [T]he sole stated reason seems
to have been contrived.”
July 2: Ross
issues this
statement: “The Census Bureau has started the process of printing the
decennial questionnaires without the question.”
The same day, Justice Department attorneys tell a Maryland
federal judge in a separate case the same thing: printing the form without a
citizenship question is underway.
The “June 30
Deadline” Evaporates
July 3: Trump
tweets that press reports about the citizenship question not appearing on the
census form are “FAKE”:
The Maryland judge sees Trump’s tweet and convenes
an emergency conference call to find out what’s going on. On the call, Justice
Department attorneys scramble: “[T]his is a very fluid situation which we are
trying to get our arms around,” the lead DOJ attorney tells the judge. He knew
nothing about the government’s new position until Trump’s tweet.
Then his boss, Assistant Attorney General for the Civil
Division (and Sessions’ former chief of staff) Jody Hunt, chimes in: “We at the
Justice Department have been instructed to examine whether there is a path
forward, consistent with the Supreme Court’s decision, that would allow us to
include the citizenship question on the census.”
Sensitive to the urgency of the situation, the court orders
the government to report back to him by 2:00 pm on Friday, July 5, on how it
intends to proceed. The lead Justice Department attorney asks for a delay:
“[G]iven that tomorrow is the Fourth of July and the difficulty of assembling
people from all over the place, is it possible that we could do this on
Monday?”
Judge: “No… If you were Facebook and an attorney for Facebook
told me one thing, and then I read a press release from Mark Zuckerberg telling
me something else, I would be demanding that Mark Zuckerberg appear in court
with you the next time because I would be saying I don’t think you speak for
your client anymore. “
July 4: Trump
proves the judge’s point. Only Trump speaks for Trump:
July 5: The Justice Department tells
the Maryland judge that DOJ and the Commerce Department are still evaluating
whether there’s a way to include the citizenship question on the 2020 survey.
Among the options under consideration: having Ross articulate yet another rationale
for its inclusion. That would start a brand new round of litigation on the
issue. Meanwhile, “the Department of Commerce and Census Bureau currently are
enjoined from printing a census questionnaire that includes a citizenship
question.”
What about the June 30 printing deadline? The government’s
July 5 submission conspicuously omits any mention of it.
Trump is punting. Noel Francisco is the ball —and so,
perhaps, is the very integrity of the census itself.
Steven J. Harper is a regular
contributor to News & Guts and the creator/curator
of the Trump-Russia
Timeline. He’s an attorney, adjunct professor at Northwestern University Law
School, and author of four books, including Crossing
Hoffa — A Teamster’s Story (Chicago Tribune “Best
Book of the Year”) and The
Lawyer Bubble — A Profession in Crisis. He blogs at The Belly of the Beast. Follow him on Twitter (@StevenJHarper1).