Today looks like a sleepy day after the holiday and day before the weekend day. But we’ve got some major news coming at 2 p.m. ET. That is the deadline for the DOJ has to explain to a federal judge just what it’s doing in the Census litigation. You’ll remember earlier this week the DOJ didn’t appear to cave but actually did cave and announced the Commerce Department was sending the 2020 Census forms off to the printer. President Trump apparently got wound up in a series of phone calls with conservative pals and possibly to a degree in reaction to the celebration of the plaintiff’s attorneys and announced on Twitter that it was full speed ahead asking the citizenship question. This led to that incredibly awkward spectacle on Wednesday in which a career DOJ lawyer had to admit to a federal judge that he truly didn’t know what was happening, that he was telling the truth as far as he understood it the day before and really didn’t know what was happening other than what the President tweeted.
Well, today they have to tell the judge what’s going on.
To be clear, this is a subsidiary litigation. So the only relevant fact is whether the government is still going to try to put the citizenship question on the Census. They probably don’t need to say what their theory is of how that’s possible, just that they’re going to try to do it. If so, then the issue before the judge is still relevant: 45 days of new discovery into the late evidence of racial intent behind adding the Census question.
There’s an entirely separate issue at play here which may or may not come up explicitly today. Justice Roberts did lay out a path for the administration to get the question on the Census. The main issue is whether the administration has the time to take that path. Reporting over the holiday suggested that Trump was demanding his lawyers draft an executive order to overrule the Court decision. That’s almost certainly Trump’s way of thinking about executive orders: ruling by decree when he doesn’t want to follow the law. If DOJ and Commerce are going to try to do this after all the logical path is to come up with a new “real reason” why they’re doing it.
This is what Roberts suggested. As long as the administration disclosed their actual reason for adding the question and as long as it wasn’t arbitrary or capricious, they could add the question. The problem was that Roberts and the other four Justices decided that the proffered explanation simply wasn’t the real reason. Cynically and, I’d argue actually, Roberts was saying you can lie to us but you need to make it plausible. This explanation didn’t pass the laugh test, neither logically or evidentially.
This all sets up a basic logical problem – another laugh test problem for Roberts. The fact that the government came up with a phony “real reason” on the first try suggests pretty strongly that the real reason isn’t a good one. To make “real reason” two at all credible requires some explanation of why they lied about the real reason on round one.
Of course, Roberts (and this really comes down entirely to Roberts) could simply not draw this obvious inference. If DOJ gets it act together and lies to the Court more effectively, then good to go.
Anyway, that’s all in the future, at least one possible future. Today, we just learn officially whether DOJ and Commerce are back to adding the question. That deadline is at 2 p.m. ET.