Some Good Readin’ on the Citizenship Question Screwup
Garrett Epps, The Census Case Could Provoke a Constitutional Crisis
Many thanks to Vasari for calling my attention to this insightful article, which tries to reverse engineer what the hell the wingers could be planning with their forthcoming executive order on the citizenship question. It also has lots of other good things to offer.
Matt Zapotosky, Justice Department changing lawyers on census case:
“As will be reflected in filings tomorrow in the census-related cases, the Department of Justice is shifting these matters to a new team of Civil Division lawyers going forward,” Justice Department spokeswoman Kerri Kupec said. “Since these cases began, the lawyers representing the United States in these cases have given countless hours to defending the Commerce Department and have consistently demonstrated the highest professionalism, integrity and skill inside and outside the courtroom. The attorney general appreciates that service, thanks them for their work on these important matters and is confident that the new team will carry on in the same exemplary fashion as the cases progress.”
Well, that’s a relief.
Jennifer Rubin, Sometimes a Justice Department lawyer must just say “no”
Yes, and sometimes you feel like a nut but sometimes you don’t.
This piece very much repays the reading. But, for reasons discussed below, I disagree with the headline’s implication: that the change in the legal team shows that a constitutional crisis is likely.
Just the FAQs
Let’s try to break this down with some FAQs.
Will Trump issue an executive order on the citizenship question, in order to do an end run around the Supreme Court decision last week?
Who the hell knows? But there is lots of reporting to that effect, so I assume he will do that very thing?
What rationale will the executive order set forth as a purported justification for the citizenship question?
Who the hell knows the answer to that, either? But, as a general matter, there are two alternative paths he might take. One is to come up with another bullshit rationale, like the enforce-the-Voting-Rights-Act nonsense. The other would bear at least some resemblance to the actual motivation.
Here’s something that I know from 35 years in business litigation: it’s so much easier when the story you are telling is the truth, or at least some version of the truth, or something that has a partial relationship with the truth. If your narrative involves the Tooth Fairy and Peter Pan, it’s very likely that you will come to grief.
Several days ago, in a post, I predicted that the least bad option—from Trump’s viewpoint—would be for Trump’s team to describe their motivation accurately, and then to make the best arguments they can make to support their goal. Aaron Blake is thinking along the same lines:
[T]he administration’s struggles to settle upon a new rationale in the ongoing legal case suggest whatever it ultimately produces may be pretty brazen. Some have even floated the idea that the administration would just admit it wants to give states the ability to draw districts using the citizenship data — something GOP map-drawers have long craved and Trump alluded to Friday, despite the administration previously saying that wasn’t part of its rationale — or even just flat-out admit that this was intended for partisan gain.
The latter would be extremely bold, but Chief Justice John G. Roberts Jr.’s opinion blocking the citizenship question suggested the administration should have broad latitude to add such questions to the census. And the same day this decision landed, the court ruled that it wouldn’t reject redistricting plans because of partisan gerrymandering.
That’s interesting. But could you come up with some additional thoughts that might help the Trumpeter?
Yes, I might be able to do that. Why not argue that citizenship question is needed to gather information in support of a future political campaign to amend the Constitution to divide up congressional seats by citizens rather than by inhabitants?
Let’s say Trump issues an executive order directing a citizenship question, and offers Reason X, whatever Reason X may be. What happens next?
There are two alternatives. In the first scenario, the Trump team acknowledges that, following on last week’s Supreme Court decision, there is an injunction in place forbidding printing the forms with the citizenship question included. The Trump team uses the executive order as a purported basis to ask the relevant district judge to withdraw the injunction. If the request is denied at the district court and appellate levels, Trump’s team appeals to the Supreme Court—and presumably abides by the result, whatever the result may be.
In the alternative scenario, the Trump team gets its executive order and directs the people over at Commerce to ignore the existing injunction.
That would be the constitutional crisis of which the pundits speak. It would be a bloodbath.
Some have suggested that the replacement of the legal team means that Trump and his lackeys will go for the constitutional crisis alternative. Is that right?
I don’t think so. To me, it looks to be the other way around. If you’re determined to precipitate a crisis by ignoring the courts, you have relatively little need for another legal team to go into courts. You just say, “Fuck the courts, we’re doing it our way.”
On the other hand, if you’re preparing to argue for a new rationale—and particularly if the new rationale you have just pulled out of your ass contradicts the rationale offered by the prior set of attorneys, it’s probably a good optical look to waltz into court with a new set of shysters.
Is it likely that the prior set of government attorneys experienced ethical qualms, and should we pin a ribbon on their chest for their integrity?
No. First of all, who cares? Secondly, everyone involved knows that, if you’re going to change your story, optics probably requires a new set of lawyers. In the third place, these are the same folks who just spent months peddling the bullshit about enforcing the Voting Rights Act, only to be called out by a majority of the Supreme Court. Something of a blot on your professional escutcheon, I would think.