The Trump administration finally admitted defeat on the census citizenship question on Tuesday. And what a disastrous exercise is was, from start to finish.
The wisdom of asking people on the census about citizenship is a moral judgment that people are free to make. (Opponents claimed it was a partisan power play to dilute the political power of Hispanics; supporters argued it's important to get an accurate count.) But how the administration went about trying to get it done is another matter entirely. And now the whole thing has now ended, unceremoniously and perhaps appropriately, with what wound up being an empty threat from President Donald Trump to try to delay the 2020 census.
The saga concluded Tuesday afternoon, when a lawyer working against the citizenship question tweeted that the Justice Department had informed him that the census forms would be printed without the citizenship question. Chief Justice John Roberts last week left open the possibility that the administration could try again to make its justification for the question pass muster, but apparently it won't even try.
What must really smart for the administration is that Roberts seemed to leave a gaping hole for the citizenship question, saying in his opinion that Commerce Secretary Wilbur Ross should have broad berth when it comes to adding questions to the census.
The problem wasn't that the government couldn't do this, Roberts said; it was that its justification was basically fabricated. A few excerpts from Roberts' decision, in which he joined with the court's four liberal justices:
• “The (Voting Rights Act) enforcement rationale — the sole stated reason — seems to have been contrived.”
• “Altogether, the evidence tells a story that does not match the explanation the Secretary gave for his decision.”
• “Evidence showed that the Secretary was determined to reinstate a citizenship question from the time he entered office” and “adopted the Voting Rights Act rationale late in the process.”
• “Reasoned decision-making under the Administrative Procedure Act calls for an explanation for agency action. What was provided here was more of a distraction.”
Roberts left open the possibility that another justification could be offered, and he didn't even suggest that the bar would be especially high - just that it would be an actual justification that was used.
There are a few possible explanations for the administration's concession:
• It decided that it didn’t have enough time to litigate the issue before the census was due in April 2020.
• It couldn’t come up with what it viewed as a valid alternate justification.
• It decided that any further justification would be a tacit admission that it lied or that it was doing this for political purposes.
Any of the three explanations are embarrassing for the administration. It seems, based upon Roberts’ decision, that a more studied legal case for the change would likely have passed muster. Maybe if Ross hadn’t misrepresented how the citizenship question came to be — he claimed in testimony that it was the Justice Department that started the process, but his own emails showed otherwise — then Roberts would never have had cause to question the administration. Maybe if they just massaged the timeline of the justification a little better, admitting that Ross wanted the question but that the Voting Rights Act was important, too, it would have been OK. And whether their reason for pulling the plug is due to time or lack of a valid alternative justification, that adverse Supreme Court’s ruling completely messed up their case.
And this is actually par for course for the administration, which has lost court cases at a heavy clip thanks to sloppiness in justifying its actions, as The Washington Post's Fred Barbash and Deanna Paul wrote earlier this year.
Which brings us to how this all ended. Last week, when the Supreme Court's decision came down, Trump floated the idea of delaying the census. The only problem was that it didn't seem like there was really a way to do that, short of changing the law. Despite this, Trump again made the threat Monday.
Less than 24 hours later, that threat has proved empty — the icing on a very bitter cake. Yes, it’s possible this was looked into and the administration simply decided it wasn’t a viable option, but it doesn’t seem that it tried particularly hard. What’s more, throwing in the towel now without trying to get the case back in front of the Supreme Court suggests it knows it either wasn’t worth the prospect of a loss or was a losing case, period.
Perhaps more than any case before it, this was an example of a loss that probably should have been avoided — and it came on the grandest stage possible.
Aaron Blake
Aaron Blake is senior political reporter, writing for The Fix. A Minnesota native, he has also written about politics for the Minneapolis Star Tribune and The Hill newspaper.
