Justice Department lawyers refused a request by federal judge George Hazel that they provide assurances that the government has given up all efforts to put a citizenship question on the census; exactly as predicted by public interest law professor John Banzhaf.
Banzhaf noted that the so-called deadline set by the judge was largely toothless since President Trump would probably seek to satisfy the Supreme Court by issuing his own executive order using his own new rationale, rather than the one already rejected by the Supreme Court.
“Although a federal judge has set a 2:00 PM Friday deadline for the government to stipulate that it will no longer seek a citizenship question, any failure by the Justice Department to take definitive action by that time would not preclude an executive order next week or even next month,” Banzhaf wrote.
The only consequence of saying “no” would be that Hazel would reopen the case before him to pursue new issues. But any potential executive order by Trump would not be affected by whatever Hazel may conclude regarding Ross and his rationale. It would be a whole new ball game, suggests Banzhaf.
An executive order could be issued next week, or possibly even later, because, as the New York Times reported, “one senior census official has said the bureau could wait until as late as Oct. 31 to begin if necessary,” and a president who can find millions of dollars for a parade can presumably find additional funds if necessary to reprint census forms which might have already begun printing without the citizenship question, says Banzhaf.
There are several rationales – including one based upon the Constitution itself – which could well still persuade the courts to permit a citizenship question on the census, especially if the explanation were included in the executive order now being considered, rather than in some new declaration by the Secretary of Commerce, reported Banzhaf days ago.
Although the Supreme Court refused to permit its inclusion based upon the “sole,” “contrived” and “pretextual” rationale offered by Secretary Wilbur Ross, it is clear that the question could still be included if a legally acceptable – not necessarily persuasive or even well-supported – basis could be offered.
After all, notes Professor Banzhaf, the famous and widely followed 1947 Supreme Court Chenery case held that an agency can rescue a decision shot down for an unjustified rationale simply by subsequently advancing a new and legally acceptable basis for reaching exactly the same conclusion.
Issuing a new executive order mandating the inclusion of the citizenship question on the census would have many advantages over trying to have the Secretary himself react, suggests Banzhaf:
* because a president’s views are entitled to much greater legal deference, his rationale for including the questions is much more likely to be accepted by the courts
* a president’s decision making process is largely shielded from the legal discovery which exposed Ross’s explanation as “contrived” and “pretextual”
* President Donald Trump, unlike Ross, would not have to backpedal and undercut earlier contrary official statements to come up with acceptable rationale for including the question on the census
* courts are less likely to formally accuse a sitting president of lying than a cabinet secretary.
To survive judicial scrutiny, the rationale for including the question – especially if offered by the President – does not have to be supported by any evidence in a formal record or otherwise, nor need it even seem, to judges, to be persuasive, well reasoned, or an honest explanation, notes Banzhaf.
Here, as the Court explained, the Secretary, “in these unusual circumstances,” had said that his sole justification was to help enforce the Voting Rights Act, and that was disproved by strong evidence.
Otherwise, virtually any explanation which is not completely frivolous on its face would have to be upheld by the Supreme Court as within a president’s vast unreviewable discretion.
Thus, for example, President Trump might simply say in an executive order that he needs citizenship information to help make a variety of executive decisions, or to better understand the nature and extent of the illegal immigrant problem, to examine on a state-by-state basis the percentage of illegal aliens versus “persons” as compared with previous censuses where the citizenship question was asked, etc.
Since none of these reasons appears to be frivolous or “pretextual” on its face, courts would have little valid legal basis to challenge his executive order.
But there is another possible rationale which was discussed by legal experts even before the recent Supreme Court decision.
While much of the Supreme Court argument about the census involved whether adding a question about citizenship might result in an inaccurate count of the “whole number of PERSONS [presumably including illegal aliens] in each State,” little if any attention seems to be directed, at least according to law professor Eugene Volokh, to the 14th Amendment which requires that representation must be reduced, if voting rights are denied, in proportion to the number of CITIZENS voting in elections. [emphasis added]
As law professor Josh Blackman pointed out, this constitutional mandate in Clause 3 of Section 2 seemingly provides a very plausible justification for asking about citizens status.
Otherwise how could “the basis of representation therein [shall] be reduced in the proportion which the number of such male CITIZENS shall bear to the whole number of male [presumably today including female] CITIZENS twenty-one years of age in such State.” [emphasis added]
Thus, argues Banzhaf, in addition to counting the whole number of PERSONS (including illegal aliens) to serve as a basis for apportionment, it appears that the government could also count CITIZENS to serve as a basis for possibly adjusting representation; presumably at the same time, and logically and logistically in the same census form, rather than otherwise.
There is also a strong argument from legislative history for this position, at least according to law professor Kurt Lash. He notes that Rep. Thaddeus Stevens, in discussing what would become Section 2, stated that “a true census of the LEGAL VOTERS shall be taken at the same time with the regular census.” [emphasis added]
He also noted a famous speech about the 14th Amendment by Senator Jacob Howard who said that “where a state excludes any part of its male CITIZENS from the elective franchise, it shall lose Representatives in proportion to the number so excluded,” and repeatedly remarked about the role played by the census in enforcing thisrequirement. [emphasis added]
So another rationale likely to withstand judicial scrutiny, especially since it has a historical basis and was suggested by experts even before the Supreme Court addressed the issue, might be based upon the 14th Amendment’s concern about the voting rights of citizens, and the need to know how many citizen voters there are in each state, suggests Banzhaf.
In short, Trump would give up many viable options, and gain very little, by agreeing at this point to give up any and all attempts at a citizenship question, argues Banzhaf.
JOHN F. BANZHAF III, B.S.E.E., J.D., Sc.D.