At the end of the Fourth of July weekend, the Department of Justice (DOJ) announced that a new legal team would be taking over the Trump administration’s effort to justify the addition of a citizenship question to the 2020 census. The case has ping-ponged back from the Supreme Court to the chambers of Federal District Court Judge Jesse Furman in Manhattan, where it began. Yesterday, Judge Furman issued an order denying the DOJ’s motion to remove the original legal team for failure to comply with a court rule requiring that withdrawing attorneys provide “satisfactory reasons.” The withdrawal motion, Judge Furman wrote, was “patently deficient” (except with respect to two lawyers who had moved on for other reasons).
What happens next is unclear. Yet whoever ends up representing the administration, the attempted withdrawal may shed light on the merits of the case and the lengths to which the President and those who serve him are willing to go for the citizenship question.
Meanwhile, the attempted change in the DOJ legal team might signal that DOJ professionals were unwilling to try to mount an indefensible defense. There are grounds to suspect that President Trump and Attorney General Barr asked their legal team to help them deceive the courts and when the lawyers refused, the administration sought other lawyers with fewer scruples.
A Brief Recap of the Census Litigation to this Point
The Constitution requires that every ten years the government conduct an “actual enumeration” of the population for the purpose of apportioning state delegations to the House of Representatives. Under Section 3 of Article I and Section 2 of the Fourteenth Amendment (which repealed the infamous Three-Fifths Clause), apportionment and thus the census are based on the number of people living in each state rather than the number of citizens. Nonetheless, when conducting the census, the government seeks additional data beyond a simple headcount, and so one might think that inquiring about citizenship is a reasonable addition.
Yet, as the ongoing litigation confirms, there is good reason to think that asking every respondent about citizenship will result in a less accurate overall headcount, because members of households with non-citizens (including documented as well as undocumented immigrants) will be reluctant to answer the census. The resulting undercount would be disproportionately concentrated on minority, especially Latinx, households, leading in turn to under-representation of minority communities. And there is substantial reason to think that Secretary of Commerce Wilbur Ross sought to add the citizenship question to the census for the politically partisan purpose of disadvantaging Democratic constituencies.
Accordingly, last month the Supreme Court, in an opinion by Chief Justice John Roberts, rejected the pretextual explanation for the question given by the Trump administration. The administration claimed that it needed citizenship data in order to enforce the Voting Rights Act (VRA). Although citizenship data are needed to enforce the VRA, there is no reason why those data must come from the census, especially given the likely cost to the accuracy of the census. Moreover, Secretary Ross came up with the plan of adding the citizenship question first, and only later did the administration come up with the VRA justification. Thus, as the Chief Justice delicately put the point, the VRA claim “was more of a distraction” than an explanation for the agency’s plan. “More of a lie” would be a blunter way to put it.
More Persuasive Lying
The Supreme Court affirmed Judge Furman’s remand of the census issue to the Department of Commerce. In theory, that means that the agency could offer a new and improved rationale for including the citizenship question. But how could any rationale survive judicial scrutiny? If the problem with VRA enforcement as an explanation was that it was a post-hoc rationalization, surely that will be true of any new rationale as well.
I took precisely that view last week on my blog and the Take Care blog, but there is reason to worry that five Supreme Court Justices may take a different view. Chief Justice Roberts joined the four Democratic appointees to form a majority to invalidate the VRA rationale as disingenuous, but he joined his four fellow Republican appointees to form a different majority to hold that a citizenship question could be added to the census for a number of legitimate reasons. These other portions of the opinion read like an invitation to Secretary Ross to exercise his policy judgment on some other, ostensibly legitimate, basis.
The difficulty for DOJ lawyers is squaring the circle: coming up with a legitimate reason for adding a citizenship question that is not also a post hoc rationalization and thus a pretext. Because DOJ lawyers offering such a rationale would be saying that the rationalization was the actual reason, they would be making a false representation to the courts. That could be why the DOJ professionals originally working on the case either tried to step aside or were told by their superiors that they would be removed; the administration needed lawyers who take their ethical obligations less seriously.
But wait. What about the rationale—first offered with appropriate tentativeness by Professor Josh Blackman and lately echoed with inappropriate certitude in aWall Street Journal op-ed by lawyers David Rivkin and Gilson Gray—that the administration needs census-generated citizenship data to enforce Section 2 of the Fourteenth Amendment? According to this claim, the law not only permits the government to ask a citizenship question but affirmatively requires it? If the Constitution requires that the question be asked, then it should not matter that Secretary Ross was motivated to ask it by a partisan reason, right?
Well, yes, but this interpretation of the Fourteenth Amendment is tendentious. As Professor Gerald Magliocca observed in a brief blog post that links a longer scholarly article, Section 2 of the Fourteenth Amendment permits Congress to demand that the census collect citizenship data or to delegate discretion to the President to seek it, but nothing about Section 2 authorizes the President to add the citizenship question on his own. As Professor Garrett Epps noted, Section 5 of the Fourteenth Amendment empowers Congress, not the President, to enforce the Amendment’s other provisions, completely consistent with the politics of Reconstruction that gave rise to the Amendment.
Accordingly, if the original DOJ lawyers working on the census case had qualms about offering any rationale for the conclusion that the government is permitted to ask a census question despite the administration’s prior misrepresentation of its motives, they likely also had qualms about claiming that the Constitution requires such a question.
Is There Time to Add the Citizenship Question?
There could be an additional or alternative explanation for the attempted change of counsel. The Supreme Court’s decision should have ended the case, because the Court’s ruling came on June 27, and administration lawyers had repeatedly represented to the courts that June 30 was a hard deadline for printing census forms. Accordingly, as Professor Martin Lederman helpfully explains, DOJ lawyers initially threw in the towel and announced that the administration would print the forms without the citizenship question. After all, even if the addition of a citizenship question could survive further judicial scrutiny, that would take months.
Then the President tweeted, and the DOJ lawyers took it back. We learned late last week that the government was exploring means by which the question could be added after all. Yet even if there is an explanation for the addition of the citizenship question that would ultimately satisfy the courts, it is now impossible for Secretary Ross and the agency to generate it in accordance with the timetable that they themselves repeatedly described as inflexible.
Perhaps—and I emphasize that this is merely speculation—DOJ wants to change its legal team so that new lawyers can argue that June 30 was not a hard deadline after all without directly contradicting their own repeated prior representations. If so, however, that might assuage the consciences of any lawyers who end up off the case, but it should not work to the advantage of the government’s legal position.
Estoppel—the legal principle that precludes a party from making mutually inconsistent factual representations to a court—operates on parties, not their lawyers. And as the plaintiffs in the census litigation recently explained in a persuasive motion, the DOJ’s repeated representations that June 30 was the last date on which the census forms can be printed should estop the government from now claiming otherwise, regardless of which lawyers write the briefs or utter the words in court.