The “solution” the administration has come up with inadvertently reveals its own mendacity. There is no other reason — not a legal or honest one — to add the question, so the president is now expected to try to sidestep the courts via executive order.
This would be Trump’s most explicit challenge yet to the judicial branch, the separation of powers and the entire concept of judicial review. Just as Trump trampled on Congress’s appropriations power in snatching funds for his wall (subsequently halted by a court order), this move, if permitted to succeed, would neuter the courts, making Trump the final determiner of what is and is not legal.
Think of it this way: If Trump were permitted to do whatever he wanted simply by uttering the incantation “executive order!” he wouldn’t have needed to litigate the matter in the first place. He’d just snap his fingers and insert the question. He did not come up with the executive order tactic until he lost in court.
An executive order would also be yet another impingement on the legislative branch’s powers. The directive to take a census every 10 years is lodged in Article I of the Constitution that lays out the powers of the legislative branch. Article I, Section 2 specifies: “The actual enumeration shall be made within three years after the first meeting of the Congress of the United States, and within every subsequent term of ten years, in such manner as they shall by law direct.” The “they” refers to the members of Congress.
Constitutional scholar Laurence H. Tribe reiterates, “In my view, the president does not have either inherent or statutory authority to add the citizenship question by unilateral executive action. Article I of the Constitution — both textually and historically as well as structurally — manifestly assigns census matters to Congress.” He adds, “The 14th Amendment doesn’t alter that assignment but reinforces it. Article II does not give the president any role in this area beyond whatever role Congress delegates to him.” He concludes that Trump could not “could succeed along this path in getting the existing district court injunctions lifted.”
Moreover, the existing ruling from the federal courts — preventing the inclusion of the census question — remain in effect. As Tribe notes, “He couldn’t rely simply on standing obstacles that might trip up potential plaintiffs seeking to challenge an executive order or memorandum the way Maryland and D.C. were tripped up [by rules regarding standing] in the 4th Circuit emoluments clause decision [Wednesday].” If he really wanted to proceed he’d have to in some manner “get the extant orders vacated.” If he did not, this would be the first clear instance in which Trump defied a court order. That in turn, Tribe contends, would “precipitate a genuine constitutional crisis that could, among other things, break the impeachment logjam.”
Trump may see this as yet another political stunt to rev up his xenophobic base. However, if he is truly committed to pressing forward in defiance of the Supreme Court, he may finally succeed in unifying Democrats on the necessity of impeachment and convince the public that leaving him in office is a threat to our constitutional system.