Can't Disobey A Supreme Court Ruling On The Citizenship Question If ... Oh F*ck It

The Justice Department has figured out this one weird trick to make unwanted Supreme Court decisions disappear like magic! Bill Barr just has to click his heels together three times and "You're Fired" all the lawyers. Then all the representations about the Census those lawyers made to federal judges will vanish like unsightly belly fat and/or your money, leaving the government free to present an entirely new set of facts and legal arguments to the court. Hocus pocus res ipsa loquitur!

DOJ spokeswoman Kerri Kupec promised new filings today in Trump's quest to defy the Supreme Court by adding a citizenship question to the Census, announcing that "the Department of Justice is shifting these matters to a new team of Civil Division lawyers" who will "carry on in the same exemplary fashion as the cases progress." Is the Department running out of lawyers willing to make a novel set of spurious legal arguments every time the president gets riled up by Fox and tweets out new marching orders? Not clear. But the Washington Post reports that responsibility for cases will be removed from the Federal Programs Branch and shifted to other lawyers in the Civil Division, including some from the Consumer Protection Branch, which routinely prosecutes marketers of dietary supplements and pharmaceutical devices. Because these two things are exactly the same!

More likely, Barr is bringing in a new set of lawyers to argue that the real drop-dead date to get the citizenship question onto the Census forms is October 31, not June 30 as the Federal Programs lawyers have told the court for more than a year now. In fact, the supposed hard deadline was the basis for expedited judicial review so that the Supreme Court could issue a decision in time to get the questionnaires printed.

There's also the small matter of the repeated assurances given to the court that Census data would never be used to round up immigrants for deportation -- contradicted last week by US Citizenship and Immigration Services Director Ken Cuccinelli -- and multiple representations that the immigration data wasn't going to be used for redistricting. Here's President Hoofin Mouth on Friday, saying the exact opposite..

Number one, you need it for Congress — you need it for Congress for districting. You need it for appropriations — where are the funds going? How many people are there? Are they citizens? Are they not citizens? You need it for many reasons.


So it's probably best to have new lawyers on the case, ones who haven't personally assured the presiding judges that June 30 was a hard deadline after which Congress would have to appropriate new funds to cover increased printing costs. That is, if the government's motion Friday to make all the pending cases disappear because SCOTUS's decision remanded the decision to Wilbur Ross to come up with a new, better lie -- one which would have to be challenged in entirely new litigation -- fails. Which it will.

Meanwhile, all the crackpots got cracking on their BS justifications to allow Trump to defy the Supreme Court. Hugh Hewitt is yammering over at the Post that Trump need only issue an executive order mandating the inclusion of a citizenship question and order Commerce Secretary Wilbur Ross to have the purest, most legal motives when implementing it. As Professor Garrett Epps wrote in The Atlantic this morning, this is "toxic pseudo-constitutional sludge " which ignores the fact that Congress controls the Census. But, hello, Pseudo-Constitutional Sludge is Bill Barr's middle name! Probably.

Epps also takes apart an even more abstruse argument by law professor Joshua Blackman, who argues that the 14th Amendment makes it illegal not to ask about citizenship status, based on a clause allowing Congress to punish states which disenfranchise adult male citizens. Hence every Census since 1870 has violated the Constitution. It's a bold strategy, Cotton!

TL, DR? We have no idea what wacko legal balderdash Trump and Barr are going to cook up in their plot to defy the Supreme Court and entrench Republican power by undercounting Latino and immigrant populations. But they'd like a new team of lawyers who haven't personally promised the various federal courts that the government was under a hard deadline after which the citizenship question would be finally decided. Shit's gonna get UGLY.

[WaPo / The Atlantic / Balkinization]

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Liz Dye

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.


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