President Donald Trump is reportedly considering issuing an executive order so that the hotly contested 2020 Census will include a citizenship question. One unnamed source even said that Trump Administration is not ignoring the fact that, even if Trump loses on this issue, Chief Justice John Roberts can be blamed.
The U.S. Supreme Court last week told President Trump there would be no citizenship question unless the Department of Commerce could come up with a rationale for adding the question other than enforcement of the Voting Rights Act (VRA). SCOTUS pretty clearly said that the VRA enforcement rationale “the sole stated reason—seems to have been contrived.” SCOTUS went on to say that there was a “significant mismatch between the decision the [Commerce] Secretary made and the rationale he provided.” Note that the Supreme Court did not say that the question was illegal; it said the “contrived” rationale was the problem.
This week, Department of Justice lawyers and Commerce Secretary Wilbur Ross indicated that the administration was caving on the issue, having confirmed that “The Census Bureau has started the process of printing the decennial questionnaires without the question.” While most took this to mean the Department of Commerce was not going to attempt to come up with another rationale to add the citizenship question, Trump went on Twitter the next day and said the news was fake, sparking an emergency federal court conference call that won’t soon be forgotten.
Here we are on Thursday, July Fourth, and Axios is reporting that Trump’s rationale could be an assertion of executive power. One unnamed senior Trump Administration official said “We didn’t come this far just to throw in the towel,” while an unnamed legal source confirmed the administration is “considering the appropriateness of an executive order that would address the constitutional need for the citizenship question to be included in the 2020 census.”
As we alluded to in the opening, at least one aspect of the administration’s thinking notes that throwing Chief Justice Roberts under the proverbial bus is an option. The rationale went as follows: “I think that there’s a good argument to be made that even though the president may lose in litigation at the end of the day, going through that process ultimately makes it clear that it’s the chief justice, and not the Executive Branch, that bears responsibility for that unfortunate outcome.”
A former federal judge Axios spoke to believed that the Supreme Court would let the executive order stand up.
“If the president of the United States were to issue an executive order, supported by his full Article II powers, directing that the citizenship question be included in the 2020 census, I believe the Supreme Court would affirm the constitutional power of the president to include the citizenship question in the census,” J. Michael Luttig said.
[Image via Jim Lo Scalzo, Pool/Getty Images]