Trump On Census Will NEVER GIVE UP, NEVER SURRENDER, NEVER ... Mind
Mark your calendars, the Constitutional crisis is scheduled for 5 p.m. ... PSYCH! ABC is now reporting that the Trump administration caved to reality and will acknowledge that their plan to add a citizenship question to the US Census is dead. So, either ABC is wrong and Trump and Attorney General Bill Barr will forge ahead and announce their Totally Legit Not At All Racist New Plan to defy the Supreme Court and ratfuck the Census this afternoon, or Trump will sign an Executive Order mandating that Wilbur Ross make a list of all those pesky illegals some other way. Spokesman Higglesford Giblets declined to comment on ABC's report, but said Trump "will do everything within his legal authority to determine and make public who is in the United States legally and who is not," according to Reuters, so at least we've got that whiff of fascism to look forward to. But are the Census cases finally, really dead? Or will they be resurrected like Dick Cheney to haunt us forever?
We believe this takes us back to exactly where we were a week ago. Happy Groundhog's Day, everybody!
After Chief Justice John Roberts held that Commerce Secretary Wilbur Ross was patently full of crap when he testified that the citizenship question was added to the Census to ensure a complete count of minorities and comply with the Voting Rights Act, lawyers for the Justice Department conceded defeat and assured courts that the forms would be printed without it. But then ...
Trump tweeted some insane bullshit that sent the DOJ scrambling to figure out how to warp reality to conform to The Mad King's dictates. Despite having privately counseled him that there was no legal way to fix this and the citizenship question was dead, Bill Barr gamely announced to the public that he had A PLAN to make it happen. We never did get to see the plan -- it was secret, we guess, like the Trump "plans" for a bigger better more beautiful healthcare system in the US -- but NPR reported that Trump was planning to sign an executive order instructing the Commerce Department to just do it.
The government's theory, which was being relentlessly flogged by radio show scholar Hugh Hewitt, was that Chief Justice Roberts only rejected the inclusion of the citizenship question because Wilbur Ross gave a lousy reason. So, by this "logic," all Trump needed to do is announce an acceptable reason, and then the whole thing would be dipped in the mikveh, doused in holy water, and fully cleansed in the wudu. After which, the entire history of Ross lying to Congress to shoehorn through a change to the Census that would result in the undercount of nine million residents and was expressly added to advantage white Republicans in the upcoming redistricting would simply disappear.
There were, of course, one or two tiny problems with Hewitt's plan, despite his helpfully concocting several brand new bullshit pretexts for the addition.
As a point of constitutional law, Article One vests Congress with control over the Census. The fact that Congress has delegated implementation to the executive branch does not abrogate its original jurisdiction. Politico has a good rundown by Yale Law professor Bruce Ackerman of the legal issues, but, put in the simplest terms, the president couldn't just unilaterally decide to cancel the whole thing.
Moreover, an eleventh hour substitution of any old random justification would not magic away the Court's holding that Ross and Trump abused their discretion by adding the citizenship question. Particularly since Hewitt's arglebargle about needing to know who is undocumented to implement Democratic proposals to give them health insurance is as unconnected to reality as the VRA wheeze they tried last time -- the Census Bureau itself says that up to nine million undocumented people and their families will just not answer. Which was, of course, the entire point of adding the question in the first place. Points for chutzpah, though!
And not to nitpick of course, but the solicitor general specifically told the court that June 30 was a hard deadline for printing, after which date Congress would have to appropriate further funds. So Hewitt's crafty plan to print TWO SETS of Census documents, at an additional cost of untold billions, would have run right into the buzzsaw of congressional Democrats. As House Appropriations subcommittee Chair José Serrano said yesterday, "I have no intention of allowing this flagrant waste of money." And, if we had to guess, that right there was what finally caused Trump to tap out.
Or perhaps it was the little problem of the federal courts. Tuesday, US District Judge Jesse Furman blocked Bill Barr's clever plan to swap out all the career lawyers who have been handling the Census litigation in New York. Presumably Barr hoped to kill two birds with one stone, simultaneously ridding himself of any attorney with a modicum of scruple and gaining counsel who hadn't personally vouched to the court that June 30 was the drop dead date, after which the issue would be settled. But that plan hit a further snag when Judge George Hazel in Maryland nixed the motion and demanded detailed assurances that swapping out lawyers would neither delay the upcoming trial nor relieve the government of responsibility to abide by representations made by prior counsel. And BuzzFeed's Zoe Tillman reports that, during a conference call with the California Census litigants, US District Judge Richard Seeborg refused to let the government change counsel in his courtroom either, at least not yet.
Heaven only knows what fuckery Bill Barr has in mind. Are these assholes planning to use Commerce Department "illegal lists" in concert with official Census data for redistricting purposes? Who the hell even knows. But that's a battle for another day ... we hope. Never know for sure with these bastards!
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Liz Dye lives in Baltimore with her wonderful husband and a houseful of teenagers. When she isn't being mad about a thing on the internet, she's hiding in plain sight in the carpool line. She's the one wearing yoga pants glaring at her phone.