Over the weekend, the Department of Justice announced it was replacing the entire legal team handling litigation over the census. That can't be good.
The tale of the 2020 census citizenship question took several twists and turns over the holiday weekend — none of them good.
It began before the Fourth of July with Trump tweeting that he wouldn't follow a Supreme Court ruling and would be moving forward with putting the question on the census. It ended, ominously, with the entire Department of Justice (DOJ) legal team handling the case being replaced.
The Supreme Court ruled the Trump administration couldn't add a question about citizenship to the 2020 census, which would likely cause an undercount of millions of black and Hispanic U.S. residents. But after Trump declared he still wanted to rig the census anyway, the DOJ began scrambling to fulfill his wishes.
The Supreme Court made its decision, but lower court litigation in other jurisdictions remains. So, DOJ lawyers filed a document in a lower court, saying they'd been "asked to reevaluate all available options following the Supreme Court’s decision" and to determine if the Supreme Court's decision "would allow for a new decision to include the citizenship question."
The lawyers also tipped their hand that the administration might create a new justification for getting the question on the 2020 census, saying they would let the court know if the Commerce Department "adopts a new rationale."
DOJ lawyers representing the administration had already insisted to the Supreme Court that it needed to address the matter by June 30 because the census forms couldn't be altered after that date. Once they lost at the Supreme Court, the administration decided the deadline didn't matter, with Trump speculating that they could do a separate addendum with the citizenship question.
Trump also indicated he might issue an executive order that would functionally overrule the Supreme Court decision, even though such a move ignores the constitutional principle of separation of powers.
All of this may have proved to be too repugnant for some DOJ lawyers on the case. Joshua Gardner, a career DOJ attorney who handled the litigation in the lower courts, told the lower court last week that "the tweet [Wednesday] morning was the first I had heard of the President's position on this issue, just like the plaintiffs and Your Honor." He went on to say he did not have a "deeper understanding" of what Trump meant but he was "doing my absolute best to figure out what’s going on.”
Perhaps other DOJ lawyers don't want to find themselves in Gardner's position. Sunday night, the DOJ announced that an entirely new team of civil division lawyers would be taking over. The Washington Post said this could possibly be "signaling career attorneys’ legal or ethical concerns over the maneuvering ordered by President Trump."
Though the DOJ hasn't provided any rationale for the change, it did say that some of the new lawyers would be from the Consumer Protection Branch of the DOJ. However, there is no consumer protection aspect to getting a racist citizenship question onto the census.
Sam Bagenstos, the Principal Deputy Assistant Attorney General during the Obama administration, summed it up when he tweeted: "assigning it to a rag-tag fugitive team of political appointees and lawyers from the Consumer Protection Branch doesn't exactly inspire confidence that all is well."
Even if the question never makes it onto the 2020 census, the damage may be done. Trump's confusing public statements and the DOJ's reversal of position do a great job sowing confusion. This could lead to immigrants deciding not to fill out the census form even if the citizenship question does not appear.
In other words, even though he lost at the Supreme Court, Trump could still win.
Published with permission of The American Independent Foundation.