Earlier this week, President Trump abruptly declared that his administration will keep up its efforts to rig the 2020 Census — which appears driven by naked partisan purposes — even after Justice Department lawyers waved the white flag. This sent those lawyers scrambling to come up with a new strategy to revive the fight.
We are now learning more details as to why Trump did this. And they are revealing about the real goals driving this effort to game the census, which entails trying to add a citizenship question to it, while claiming this is all about better enforcing the Voting Rights Act.
The Post reports that the president reversed his own administration’s decision “after Trump talked by phone with conservative allies who urged him not to give up the fight.”
Trump also ordered the reversal because he is “furious” over his administration’s quick surrender, officials tell The Post, adding that he believes the administration “had given up the fight too easily.”
Which raises a question: What is the true nature of this “fight” that conservative allies don’t want Trump to “give up,” and which Trump believes officials backed off from too quickly?
Does anyone here think they’re “fighting” to better enforce the Voting Rights Act?
That, of course, is the rationale that the administration had claimed, but the Supreme Court last week blocked this effort, with Chief Justice John G. Roberts Jr. ruling that this rationale — put forth by the Commerce Department, which oversees the census — is “contrived.”
The move would likely bolster the Republican Party: A citizenship question could discourage people from households with noncitizens from responding, resulting in undercounts that skew representation and the awarding of federal dollars away from those areas.
Roberts agreed that the administration’s stated rationale was a pretext, writing that Commerce Secretary Wilbur Ross had made a decision early on to do this and had asked the Justice Department to request the change from him, giving him a reason to do it.
Reinforcing the administration’s bad faith, newly surfaced files from a deceased GOP operative who advised officials on adding the question revealed that he viewed this as a way to confer electoral advantage on Republicans and whites.
We also know that Stephen K. Bannon and Kris Kobach pushed the administration to do this early on, with Kobach piously insisting this was really about getting a more accurate count. That’s hard to believe, given that Bannon and Kobach are two of the most virulently anti-immigrant of Trump advisers.
Roberts had still given officials a way to keep the case alive, by sending it back to the lower courts, potentially leaving an opening for them to come up with a new explanation for the question to replace the “contrived” one.
But officials apparently saw this as a lost cause, and earlier this week, they confirmed they had dropped the quest to add the question. Which led to Trump angrily tweeting this was “FAKE,” forcing administration lawyers to scramble to revive the effort.
Administration lawyers may have sabotaged Trump
As part of this scramble, Justice Department lawyers told the courts that the Commerce Department may now adopt a “new rationale” for adding the citizenship question, and that the departments are trying to “reevaluate all available options” in the quest to find one. It’s unclear what this “new rationale” will be.
Daniel Hemel, a law professor at the University of Chicago, told me that this might have actually sabotaged Trump’s chances, because the stark admission that officials are looking for a replacement rationale underscores that it, too, will inevitably be offered in bad faith.
“The last thing you’d want to do if you were trying to convince the courts that your stated rationale is genuine is to tell a judge that you’re looking for a ‘new rationale’ to justify a policy decision you’ve already made,” Hemel told me. “They are essentially telling the courts that whatever rationale they come back with, it will still be pretextual.”
Hemel added that this very well might have been an act of “bureaucratic resistance.” Trump basically threw his administration’s lawyers “under the bus” by demanding a reversal, Hemel suggested, “and now they’re throwing him back under the bus.”
It’s possible that lower-court judges still hearing the case could now simply order the Commerce Department not to print any forms with the citizenship question, Hemel noted.
The administration would appeal this. But Hemel suggested it’s “more likely than not” that Roberts would support that decision.
“Roberts’s decision is premised on the idea that agencies need to state their real reasons for acting,” Hemel noted. He added that the admission that lawyers are now looking to “reverse-engineer a rationale for the decision” could lead Roberts to issue a final ruling against Trump.
Bad faith everywhere you look
Which brings us back to the question: What are conservatives and Trump keeping up the fight for, exactly?
We know from the established facts that this was never about enforcing the Voting Rights Act, and the courts have confirmed this view. Yet Trump ordered the lawyers to keep this battle going, anyway, in part because conservatives urged him to keep fighting, even though the original rationale has now been unmasked as fake!
Now that administration lawyers have admitted that they’re looking for still another pretext to justify this effort, those private conversations cast still more doubt on this whole exercise. Hopefully it won’t be too much longer until this farce is put out of its misery for good.