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A “Screaming Siren” Went Off at the DOJ over Trump’s Census Citizenship Question

The Justice Department has a new team of lawyers with a nearly impossible task: finding a new rationale to include the citizenship question on the census after all.

by Gaby Del Valle
Jul 9 2019, 6:13pm

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Attorney General William Barr said the Trump administration has a new argument for adding a question about citizenship to the 2020 census. He just didn’t explain what it is.

On Monday, Barr also told the Associated Press something more unusual: Several members of the DOJ's legal team that unsuccessfully made the case to the Supreme Court said they’d prefer “not to continue during this new phase.”

But later that day, a federal judge in New York rejected the DOJ’s request to replace the old legal team, the New York Times reported. The Justice Department hadn't provided the judge with an explanation for the change.

Trump had put those lawyers in a difficult position. After the Supreme Court struck down including the question — and punted the case back to the lower court — in late June, the DOJ announced the census would go to the printers without a question about citizenship status. Then, the president tweeted: He insisted reports that the DOJ had dropped the case were “FAKE” and that lawyers still had a plan.

Now, the Justice Department has a new team of lawyers with a nearly impossible task: finding a new rationale to get the citizenship question on the census after all — and making that reasoning sound legitimate.

Justin Levitt, an associate dean at Loyola Law School who served as a Justice Department official during the Obama administration, called the department’s decision to switch out the entire legal team a “screaming siren of a red flag.”

“[Justice Department] lawyers are plenty comfortable making reasonable legal arguments that they personally disagree with — that happens all the time,” Levitt said. “I can’t think of a reason why an entire trial team would be replaced, other than the trial team saying, ‘This is indefensible. I can’t sign my name to whatever is coming next.’”

An anonymous Justice Department lawyer told the New York Times that the original attorneys on the case quit after they had trouble coming up with a justification for the question that didn’t seem entirely made up.

“Many reasons”

When the Supreme Court blocked the Trump administration from adding a citizenship question, the justices’ decision hinged on the DOJ lawyers' apparent lack of transparency about the reasoning. In his majority opinion, Chief Justice John Roberts wrote that the Trump administration's rationale "seems to have been contrived."

After several federal cases were filed against the Trump administration, lawyers at the DOJ spent over a year arguing that the Commerce Department needed to add a question about U.S. citizenship to the census to help the DOJ enforce the Voting Rights Act. But civil rights groups argued the administration had a more sinister reason: collecting data that could help states draw legislative districts based on citizen population instead of total population. Several studies have shown that doing so would benefit certain constituencies at the expense of other, largely minority, ones.

One of those studies — found on the hard drive of Thomas Hofeller, a recently deceased Republican redistricting operative — showed that drawing districts based on citizen population would benefit “Republicans and Non-Hispanic Whites” and “would clearly be a disadvantage for the Democrats.” And as it turns out, Hofeller wrote the part of the DOJ’s letter asking the Commerce Department to add a citizenship question to the 2020 census.

“The Supreme Court clearly said that the Voting Rights Act justification was a pretext — in other words, it wasn't the real reason why the Trump administration wanted the question,” said Tom Wolf, a lawyer at the Brennan Center for Justice’s Democracy Program. “Now what the administration is stuck trying to do is develop a new justification for a policy position they've already made. That's the textbook definition of pretext.”

Speaking to reporters Friday, President Trump explained why he thinks the question is necessary: “Number one, you need it for Congress. You need it for Congress 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.”

That’s a far cry from the government’s initial reasoning for the question. In fact, U.S. Solicitor General Noel Francisco previously said claims that the administration wanted to use the citizenship question to give states the power to draw legislative districts based on citizen population amounted to little more than a “conspiracy theory.”

A shifting deadline

The changing reasoning isn’t the only problem. The administration also told several federal courts that it needed a decision by June 30 so that the Census Bureau could meet its July 1 printing deadline. But now, the DOJ seems willing to push back that deadline to include a question about citizenship.

“Because they told the court that, everything was expedited. And now all of a sudden they’re saying, ‘Oh, we didn’t mean it. We still can do something after June 30,’” Ezra Rosenberg, the co-director of the Lawyers' Committee for Civil Rights Under Law’s Voting Rights Project, told VICE News. “We think they’re out of time.”

But if the administration were honest about its reasoning for the question — which, according to the president, is redistricting — the court could easily rule that the question has discriminatory intent, according to experts.

“They know that’s impermissible, which is why they created the pretext of the Voting Rights Act enforcement instead of just saying the quiet part loud,” Wolf said.

If the new lawyers can’t find a way to get the court system to agree, Trump apparently thinks he has a plan: He told reporters Friday that he’s exploring “four or five ways” to get the question on the census, one of which is an executive order. And he now appears to be fundraising off the issue.

But experts said an executive order isn’t a viable option.

“The president can put his name on any order he so chooses,” Terri Ann Lowenthal, a former staff director of the House Subcommittee on Census and Population who now consults on census issues, told VICE News. “But that order would not be valid at this point, because it would violate multiple standing federal court orders, as well as federal law.”

Correction 7/11/19 9:51 a.m.: A previous version of this story misquoted Chief Justice John Roberts. The story has been updated.

Cover image: Attorney General William Barr speaks during a tour of a federal prison Monday, July 8, 2019, in Edgefield, S.C. (AP Photo/John Bazemore)