On Wednesday, writing for The Daily Beast, legal columnist Jay Michaelson walked through the sequence of events that led to the Trump administration restarting the fight to include a citizenship question on the 2020 Census hours after the Justice Department conceded defeat in federal court — and how the capriciousness of the president is throwing career civil servants into turmoil.
"Suppose you're a lawyer at the Department of Justice," said Michaelson. "You've worked there for 16 years, serving Democrats and Republicans alike. And, in a contentious lawsuit about the census, you tell the judge that, following last week's landmark Supreme Court decision, the government has abandoned its plans to change the census to ask about citizenship and is printing the forms without the question now. Everyone verifies this is true: the Commerce Department, including Commerce Secretary Wilbur Ross himself, the Census Bureau, and your colleagues at the DOJ. Then, when you're away for July 4 vacation, the president says that's fake news."
"If you're Joshua Gardner, special counsel at the Department of Justice, you tell the judge—on the phone, after the judge read the tweet and asked for an impromptu hearing—that 'I've always endeavored to be as candid as possible with the court. What I told the Court yesterday was absolutely my best understanding of the state of affairs… The tweet this morning was the first I had heard of the President's position on this issue…. I am doing my absolute best to figure out what’s going on,'" said Michaelson. "So are we all ... The census controversy has officially degenerated from (averted) tragedy to farce."
Trump officials allegedly sought to change the census to reduce the response rate of noncitizens, reducing representation and federal funding for non-white, non-Republican areas of the country, as evidenced by files from a dead GOP strategist's hard drive.
The Supreme Court rejected the administration's request to greenlight to question, sending the case back to lower court for further review — and leaving the administration with almost no time to litigate the question before the census needs to begin.
"Perhaps the 2020 forms are being printed now, but the administration will continue the fight," wrote Michaelson. "Or perhaps the White House thinks it can spend additional money to print a new set of 2020 forms in a few months, after it’s had time to concoct a new rationale for the change. That's not really possible—any new justification would be challenged, just like the last one was, and the court battle would stretch into 2020 itself. It's a logistical impossibility. But trying anyway would prolong the political battle, allowing Trump to score more points with his base."
The compromise that DOJ lawyers appear to have reached in new court filings, said Michaelson, is that they are going to do an "evaluation" of whether it's possible to do what Trump is demanding, even though it isn't.
"In terms of the census, there is no way on God's green earth that a citizenship question will be on the 2020 form. Notice that even today's filing is conditional—if there's a way to do this, the government may file a motion. Because everyone knows there’s no way. But the government will 'perform the analysis requested' anyway, because doing so is politically expedient, and might just scare a few Latinos from responding. And most of all, because the president just tweeted that they would."
"Welcome to the madhouse," concluded Michaelson.