President Trump May Use an Executive Order to Add the Citizenship Question to Census 2020

(AP Photo/Kevin Hagen;

The melodrama over whether the US government will be able to actually count how many citizens it has continues and to get stranger.

When the government announced that it intended to count the number of citizens, large sections of NeverTrump went crazy. Two lawsuits were filed. One, in New York, which claimed the Department of Commerce had violated the law by adding the question and had, wait for it, ignored the advice of its employees in the process. A second, in Maryland, alleges that the question is racist because black folks and illegals won’t answer the entire census because of that question. Why black Americans would not want to be counted is beyond me. The first case made it to the Supreme Court which, last week, decided that the question could be asked but that there had to be a coherent reason as to why. How the Judiciary can tell the Executive, when it is carrying out a core function, that it has to say “mother may I” before proceeding, I really don’t know. The second case is waiting in the wings should the question make it over the bar set by the Supreme Court.

As I posted last evening, President Trump caught Justice and Commerce by surprise when he announced that the administration would continue to try to find a way to ask the citizenship question.

Saying it is easy, but doing it is hard. How Commerce and Justice could come up with a rationale in time for mailing the Census is more than a little unclear. Axios, however, is reporting that the White House is looking at another way forward.

President Trump is considering an executive order to try to move forward with a citizenship question on the 2020 census, top sources tell Jonathan Swan and me.

• “We didn’t come this far just to throw in the towel,” said a senior administration official with direct knowledge of the conversations.

Administration lawyers are exploring various legal options.

• A senior legal source said: “The administration is considering the appropriateness of an executive order that would address the constitutional need for the citizenship question to be included in the 2020 census.”
• But there is considerable skepticism within the administration that an executive order would succeed.

…

Former federal judge J. Michael Luttig, who has longtime ties to officials in the administration, told Axios:

• “If the president of the United States were to issue an executive order, supported by his full Article II powers, directing that the citizenship question be included in the 2020 census, I believe the Supreme Court would affirm the constitutional power of the president to include the citizenship question in the census.”

This has a lot to be said for it.

First and foremost, it cuts the timeline necessary to make a case to take back to the Supreme Court down to days rather than weeks. The rationale in the executive order isn’t necessarily tied to any of the dog’s breakfast of reasons that accompanied this case to the Supreme Court. And it is a different animal entirely for Chief Justice John Roberts to tell a federal agency that he doesn’t like their reasoning than it is for him to tell the President the same thing.

As I said in my post last night, I think that once the administration gets the nod from the Supreme Court, the Maryland case dries up an blows away like the desiccated dung that it is.

The bottom line in this strategy is that the administration doesn’t want to be blamed for this question not being asked and they are gambling that Roberts doesn’t want the blame either. Some unnamed source who is allegedly familiar with all this says:

“I think that there’s a good argument to be made that even though the president may lose in litigation at the end of the day, going through that process ultimately makes it clear that it’s the chief justice, and not the Executive Branch, that bears responsibility for that unfortunate outcome.”

If this is how the citizenship question gets onto the census questionnaire, the results will be nothing short of epic. We’ll be swabbing blood, brain matter, hanks of hair and skull fragments from buildings for months.

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