Can’t Anybody Play This Game?


One of the cases challenging the citizenship question on the census is pending in Maryland federal district court. That’s the case where District Judge Hazel has become exercised about the stuff on the late Republican operative Tom Hofeller’s hard drive. That would be the stuff evidencing a rightwing conspiracy to ask the citizenship question in order to advance the holy cause of redistricting that favors the melanin deprived segment of our population.

You may remember that, last week, after the Supreme Court’s census decision—that was in a different lawsuit raising similar questions—and after Trump’s refusal to accept defeat, Judge Hazel ordered the government lawyers in his case to file a written answer on Friday to the question, Just what in damnation is going on?

The government side met the deadline. They were a little iffy about what might happen from this point on. The key point from their little essay:

The Departments of Justice (DOJ) and Commerce have been asked [by His Imperial Doofusness] to reevaluate all available options following the Supreme Court’s decision and whether the Supreme Court’s decision would allow for a new decision to include the citizenship question on the 2020 Decennial Census. In the event the Commerce Department adopts a new rationale for including the citizenship question on the 2020 Decennial Census consistent with the decisions of the Supreme Court, the Government will immediately notify this Court so that it can determine whether there is any need for further proceedings or relief. But proceeding to discovery now in connection with a new decision that has not yet been made would be premature. It would also be extremely inefficient. See Fed. R. Civ. P. 1. [For you non-shysters, that’s Rule 1 of the Federal Rules of Civil Procedure.] Whenever any new decision is made, Plaintiffs presumably would seek discovery on that new decision rather than the old one.

Two takeaways, then. First, we—the Department of Justice—still don’t know which end is up. Though, if we ever find out, we’ll tell you, judge.

Second takeaway: you know that really incriminating stuff on the hard drive about protecting white people? Well, that only had to do with the OLD decision to ask the citizenship question. If there is a NEW decision to ask the same question, it’s going to be for a COMPLETELY DIFFERENT REASON. Ain’t gonna have nothin’ to do with no white supremacy! No, siree! Not even for a Noo Yak minute!

On second thought, there’s actually a third takeaway: And by the way, Judge Hazel, if you would like to buy a bridge in Brooklyn, we can make you a really nice offer.

And Now the Scene Changes, from a Courtroom in Maryland, to …

… the White House.

But first, this observation. If we all take off our MAGA hats and our Bernie buttons, we can see that there is a superficially appealing logic in apportioning by citizens rather than by inhabitants. That rationale would be: only citizens can vote, and accordingly it is citizens who are being represented. So apportioning by citizen/voters, not by inhabitants, would give equal power to each citizen/voter’s vote.

Now, you may like that argument or you may not like it. But the key point is that, as I showed yesterday, it’s barred by the language of Article I of the Constitution. The Constitution requires that the Census count the inhabitants, not the citizens, and that apportionment of the House must be by inhabitants, not just citizens.

But no one told The Donald about this constitutional imperative. See Trump May Have Revealed The Real Reason For Census Citizenship Question: The president’s comment that the question is needed for “districting” could undermine his administration’s effort to add it to the 2020 census.

So the first reason he gives for a possible new executive order is the alleged need for citizenship information in order to apportion the House of Representatives, in violation of the Constitution.