What Kind Of Opening Does Trump Have To Undo SCOTUS’ Census Ruling?

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June 27, 2019 2:35 p.m.
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President Trump has made clear that he wants to fight until a citizenship question is included in the census.

The Supreme Court invalidated his administration’s previous move to add the citizenship question on Thursday, but the court did not forestall the administration from adding it in the future.

Trump responded by threatening to delay the census “no matter how long” so that the question could be re-added

Thursday’s opinion — in which Chief John Roberts joined the court’s liberals in ruling that the government’s official reason for adding the question was too bogus to pass legal muster — was a victory for voting rights advocates, but also only a partial one.

Roberts, who wrote the majority opinion, signaled that if the administration could put forward a legitimate reason for adding the question, the executive branch would have the authority to do so.

Even before Trump’s tweet, there were questions as to whether the administration will try to do that for the 2020 census and if it has enough time.

In court filings, the Justice Department said that July 1 was the printing deadline for the survey forms. But that was when it was trying to ward off attempts by the challengers to use new evidence related to the case to continue litigation around the issue in the lower courts, even after the Supreme Court was supposed to have handed down its decision.

The Census Bureau has also maintained that’s a real deadline, though one of the Bureau’s top officials testified that printing could be pushed back to Oct. 31 with the use of “exceptional resources.

On a call with reporters, those who opposed the question in court expressed confidence that Thursday’s decision effectively blocked it from being added to the 2020 census.

Asked if the administration has time to re-add the question, ACLU attorney Dale Ho said, “I think the answer to that is clearly no.

He and others pointed out that setting up the legal rationale to change the census is not something the administration could do overnight.

“Developing the legal justification for doing so is something that should be deliberate. To try to do this over the weekend, I think, is a clear sign of a cutting corners in a way that does not comport to reasonable decision-making,” Ho said.

That means re-adding it before the Monday deadline would be basically impossible.

However, they could not dismiss entirely the possibility that the administration would push back the deadline in order to attempt to get the question back on the survey, even if they expressed skepticism that such a move was logistically feasible.

“The Census Bureau has said that they need to print these forms in July and they have already been delayed significantly because of the [litigation],” said Vanita Gupta, president of the civil rights group the Leadership Conference Education Fund.

“Given how many times they have represented that they need to start printing the forms next week, I think it would be the height of hypocrisy for the administration to try to get more time now,” Ho said, but he added: “I wouldn’t put anything past them.”

He acknowledged that “this administration has a looser relationship to the law than most administrations do.”

“So is it impossible that they might try to come back? No, it’s not impossible for agencies to try to come back and do something after they’ve been blocked under the [Administrative Procedure Act], but if they do we’ll be ready,” he said.

Terri Ann Lowenthal, a consultant who is an expert on the census, pointed out that the administration cannot exactly delay the 2020 census indefinitely.

“The President’s suggestion that the census could be delayed demonstrates an ignorance of the Constitution, which requires a census and reapportionment of seats in the House of Representatives every ten years,” Lowenthal said. “The Census Bureau cannot delay the census next year. It either starts operations on time, or it doesn’t go forward. The schedule for a census is unforgiving and immutable and revolves around a statutory census date of April 1st.”

There’s been no word yet out of the Census Bureau whether it is going forward with the Monday printing.

“The decision is currently being reviewed,” the Bureau said in a statement after the decision.

If the forms do go to the printers on Monday, then we’ll know this issue is over.

But if they don’t, then it’s a good sign the administration is going to give the question another try.

Rick Hasen, an election law expert, predicted at Slate that the administration will “surely concede” that an October printing deadline is in fact doable. It can then use the time to put forward a new reason for the question that Roberts  — along with the conservative wing of the Supreme Court, which was ready on Thursday to OK the question — can find is allowable.

“So we may see a rare September argument where these issues will be back before the Supreme Court,” Hasen said.

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