Census

The Trump Administration's Double Reversal on the Census Highlights the Difficulties of Dealing With a Mercurial President Who Rules by Tweet

Did Trump change his mind about the citizenship question twice, or did his underlings ignore him? Which is worse?

|

Will the 2020 census ask U.S. residents about their legal status? The answer so far has been yes, no, yes, no, and now yes again. That bewildering zigzag is partly due to litigation challenging the citizenship question but mostly due to Commerce Secretary Wilbur Ross's blatant dishonesty and the Trump administration's chaotic decision making.

Last week the Supreme Court ruled that Ross's "contrived" rationale for reinstating the citizenship question—that the Justice Department needed better data to enforce the Voting Rights Act—will not do. "In order to permit meaningful judicial review, an agency must 'disclose the basis' of its action," Chief Justice John Roberts said in the majority opinion. "The reasoned explanation requirement of administrative law…is meant to ensure that agencies offer genuine justifications for important decisions, reasons that can be scrutinized by courts and the interested public. Accepting contrived reasons would defeat the purpose of the enterprise. If judicial review is to be more than an empty ritual, it must demand something better than the explanation offered for the action taken in this case."

Reacting to that decision on the day it was handed down, Trump tweeted that it "seems totally ridiculous that our government, and indeed Country, cannot ask a basic question of Citizenship." He added that he had "asked the lawyers if they can delay the Census, no matter how long, until the United States Supreme Court is given additional information from which it can make a final and decisive decision on this very critical matter."

Notwithstanding that directive, the Justice Department on Tuesday said the administration had decided to drop the citizenship question and had begun printing census forms without it. The Census Bureau, which is part of the Commerce Department, had always maintained that it needed to start printing forms by July 1 in order to keep the census on schedule. Ross confirmed that "the Census Bureau has started the process of printing the decennial questionnaires without the question."

But then Trump tweeted again, that same day, about the importance of including the citizenship question. "I have asked the Department of Commerce and the Department of Justice to do whatever is necessary to bring this most vital of questions, and this very important case, to a successful conclusion. USA! USA! USA!" The next morning he tweeted that "we are absolutely moving forward" with the citizenship question," saying reports to the contrary were "FAKE!"

That comment led to a surreal exchange during a teleconference on Wednesday between DOJ lawyer Joshua Gardner and U.S. District Judge George Hazel, who is hearing one of the lawsuits challenging the citizenship question. "I don't know how many federal judges have Twitter accounts, but I happen to be one of them, and I follow the President, and so I saw a tweet that directly contradicted the position that Mr. Gardner had shared with me yesterday….I'm going to ask, frankly, the same question I asked yesterday to Mr. Gardner. Is the Government going to continue efforts to place a citizenship question on the 2020 census?"

Gardner's response highlighted the difficulties of dealing with an administration where the president frequently seems to be at odds with his subordinates and one hand does not know what the other is doing. "What I told the Court yesterday was absolutely my best understanding of the state of affairs and, apparently, also the Commerce Department's [understanding of the] state of affairs, because you probably saw Secretary Ross issued a statement very similar to what I told the Court," he said. "The tweet this morning was the first I had heard of the president's position on this issue, just like the plaintiffs and Your Honor. I do not have a deeper understanding of what that means at this juncture other than what the president has tweeted. But, obviously, as you can imagine, I am doing my absolute best to figure out what's going on."

So is everyone else. "The Supreme Court ruled that it is legal to have a citizenship question in the census if there's an appropriate explanation—and it should come as no surprise President Trump is looking at every option within his legal authority to add such a question," White House spokesman Hogan Gidley said yesterday. Except that it clearly did come as a surprise to the Commerce Department and the DOJ lawyers who supposedly were exploring the president's options.

"The administration is considering the appropriateness of an executive order that would address the constitutional need for the citizenship question to be included in the 2020 census," a "senior legal source" told Axios yesterday. That phrasing suggests the leading contender for "an appropriate explanation" is an argument that South Texas College of Law professor Josh Blackman floated in April.

The 14th Amendment, Blackman noted, says "representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state, excluding Indians not taxed." But it adds that when a state disenfranchises residents who otherwise would be qualified to vote in federal elections (at the time, male citizens 21 or older), "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 citizens twenty-one years of age in such state." In order to impose that penalty, the federal government has to know how many citizens live in the offending state, meaning that a citizenship question arguably is constitutionally required as part of the census. Presumably that is what the "senior legal source" quoted by Axios had in mind when he referred to "the constitutional need for the citizenship question."

The Commerce Department, of course, could have offered that argument—or any other halfway plausible, nonpartisan explanation, although probably something better than "USA! USA! USA!"—from the beginning, in which case the Supreme Court almost certainly would have approved the citizenship question. The Court noted that the commerce secretary has wide discretion to decide what's asked in the census and that review under the Administrative Procedure Act is "deferential." It told the Commerce Department to try again only because the administrative record showed that Ross had decided to add the citizenship question "about a week into his tenure" for reasons he has never revealed (but which may have had something to do with disadvantaging Democrats by suppressing responses from households that include unauthorized residents) and then spent months trying to get another agency to provide a post facto rationale for a decision he had already made. If Ross had been more honest—or even if he had been better at being dishonest—census forms including the citizenship question would be rolling off the presses right now.

While it's clear that Ross is a bad liar, it's harder to know what to make of the administration's double reversal on its plans regarding the citizenship question in the space of a week. Assuming that the Justice Department consulted with the president before announcing that it was throwing in the towel, we can attribute the jarring changes in course to Trump's mercurial nature. But if the DOJ and the Commerce Department made the decision on their own (hoping Trump wouldn't notice?), that suggests even deeper problems. Given that the DOJ seemed to ignore Trump's June 27 directive, and in light of all the other times that administration officials have defied the president, that explanation cannot be dismissed out of hand.

If the officials who were ready to give up had been smart, they would have printed dummy census forms that included the citizenship question, shown them to Trump, and assured him that all was proceeding as planned. If Trump happened to see press reports to the contrary, they could have dismissed the stories as fake news. But it's too late now.

[This post has been revised to include Trump's July 3 tweet about the census.]

NEXT: Sheriffs Say They Won't Enforce New Washington Law Raising Gun Purchase Age to 21

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. Did Trump change his mind about the citizenship question twice, or did his underlings ignore him?

    Yes. Also no. MAGA!

    Anyway, did you see what Nike did?!?!?!?!?!?!?!?!?!?

  2. How is this different from any other organization with 2 million employees? Do you really expect them to be in seamless lockstep? That’s ridiculous.

    I also think it is laughable that an organization will have a single reason for doing something. It’s a group of people with hopefully aligned objectives. But it is silly to think everyone agrees with all the decisions or that when they do agree it is always for the same reason.

  3. So the basic point is that ‘a pen and a phone’ is ok, but ‘a tweet’ is bad?

    1. Obama was old school and couldn’t keep up with technology. Trump is plugged in and on the cutting edge.

  4. “Except that it clearly did come as a surprise to the Commerce Department and the DOJ lawyers who supposedly were exploring the president’s options.”

    Really? I doubt it. If they didn’t think Trump was trying to find some way, any way, to get his way, then they’re pretty ignorant of Trump.

    1. I am glad the Lefties have not learned in over 2.5 years. It just helps my prediction about the Democrat Party becoming nationally politically irrelevant soon. The Party of slavery is shifting toward Communism and they have almost given up on stopping Trump, beside the propagandists that is.

    2. People at Commerce and Justice knew Trump was trying to ‘find some way, any way’ to add partisan bigotry to the census . . . that is why they lied in federal court.

      Will Trump leave office before the limitation periods expire with respect to those lies?

      1. Are you asking if a politician will be held accountble for their falsehoods?

        Ah, glorious childlike naivete.

        1. Hold up there pard.

          “The question is legal but we need cover for saying so, now go workshop something we can use” is technically a rebuke.

      2. WTF is bigoted about asking the citizenship question on the census.
        This question will be used in determining representatives in congress and boundary restructuring. It is also ultimately important for the federal government to know how many eligible workers there are in America and exactly how many immigrants, legal or other wise are really in the country instead of the estimated and grossly underestimated number.
        As a partisan Dems, it is only to be expected that you oppose this question because like the current batch of Dems you are attempting to keep illegals in the country and somehow pass legislation to allow them to vote. This is evident by California passing legislation to give illegals driving licences.
        Judicial Watch recently won a court case ordering California to purge over 1 million voters from their register. Why would California even want to fight this in court if they had no intention of abusing it.
        The corruption and potential for voter fraud stinks.
        Take this potential national and you are definitely looking at being able to steal the election. This is way more destructive to America’s democracy than anything the Russians did with their ridiculous ads on Facebook in 2016.
        It’s curious that it seems to be mostly Dem held states which want to keep the massive numbers of ineligible voters on the rolls to the point of fighting it in court and wasting tax payers money.
        Personally, I hope America gets to the point where it kicks California out of the union. This once great and prosperous state has become bankrupt and corrupt beyond anything anyone could have perceived less than 20 years ago.
        It is a burden on the union and it’s representatives continue to pass state laws which contradict federal laws which is illegal and absolutely unconstitutional.

        1. There’s nothing “bigoted” about it, in fact, if that were the real objection, there are questions on the Census that would be far more objectionable. Such as the ones about your race/ethnicity.

          The simple fact is that the Democrats’ political power is being inflated by large numbers of illegal aliens in the country. At all costs they want them to stay, and more to be brought in.

          Accurate information on the number of illegal aliens in the country could make it politically impossible to obstruct border enforcement any more, and might even make mass deportations politically feasible.

          The left doesn’t want that question on the Census because they are desperate that it not be answered, they need people to remain in the dark.

    3. I don’t think it came as a surprise. I think they didn’t want to follow the order in the first place, and sized on the court defeat as an opportunity to publicly give up before he could tell them otherwise, in the hope that he wouldn’t countermand the decision.

      It’s been a persistent problem throughout his administration, he’s been saddled with subordinates who really, really do not want to follow the orders they’ve been given, but who generally don’t have the honesty to resign in favor of somebody who might be willing to do so.

      1. Who needs elections when we have bureaucrats?

  5. “If judicial review is to be more than an empty ritual, ”
    Review s/b Constitutional or not constitutional?

  6. Hahaha. Did you Lefties really think that Trump would just give on this issue?

    Trump will sneak a new version of the question in last minute or have followup Census takers ask the question.

    The SCOTUS majority said that the citizenship question is alright and the government has wide latitude to determine what is asked for the Census.

    Georgia and other red states are going to pick up so many House seats from Blue states based on the 2020 Census, it’s going to send Lefties into another 2.5 year crying fit.

    1. Predicting another Red Wave? Will this one be even more bigly than your Red Wave of 2018?

      What is your prediction on when conservatives finally become competitive in the American culture war? When will more than a half-century of being curb-stomped by their betters (the liberal-libertarian mainsteam) end for America’s right-wing losers?

      1. “What is your prediction on when conservatives finally become competitive in the American culture war?”

        11/8/2016.

        Around 9:30 pm EST.

      2. It’s pretty funny to read comments that completely misunderstand what the OP is taking about. I lol’d pretty hard at this.

      3. Considering the Republicans actually gained seats in the senate and the Dems did not gain anywhere near as many seats in congress that they had predicted.
        As unemployment decreases among all demographics, especially minorities like Hispanics and Blacks, These minorities are turning their backs on the racist Dem party which they now know have been holding them back for decades.
        In a recent poll of Hispanics it had Trump at 50%. This would have been unheard of even 20 years ago.
        The Democratic party is on a downward spiral to oblivion as they move further to the left. Nobody is buying into their massive tax giveaway which will never be financed even if they tax the rich at 100%. These Dems have never been asked by any interviewer how they will pay for their tax payer funded giveaway.
        They think that if they campaign on ‘free stuff for everyone’ that no American will see through this obvious fraud.
        This is the only policy the Dems have, except for ‘impeach Trump’ which they have been pounding the American people with since the day Trump won in 2016.

    2. Did you Lefties really think that Trump would just give on this issue?

      Personally, I expected Trump to pretend that he was abiding by the Supreme Court’s ruling, but to print the census forms with the citizenship question anyway, leaving it to advocacy groups to sue again to enjoin their distribution and use, presumably with the hope that no one would be able to successfully argue they had standing to sue, and so on, until finally sometime in 2022 we got a definitive ruling that Trump shouldn’t have done that either.

  7. This is what transparency in government looks like. There is a back-and-forth of opinions, and sometimes the conclusion changes or some members of the team are out of the loop, and it all is out there for everyone to see. On this type of issue – very low impact – it is perfectly OK.

    On some issues, where the appearance of uniformity and solidarity is important, the discussions should go on behind closed doors and a single conclusion shared with the public.

    1. I also don’t get how opposing voices in an administration are a bad thing. Shouldn’t we WANT some opposition in the advice?

      This isn’t like a Democrat where, at least since 1992, there seems to be absolutely zero disagreement on any policy when a D is in the WH.

      1. Didn’t famously liberal historian Doris Kearns Goodwin write very glowingly about Lincoln’s Team of Rivals? And wasn’t Lincoln famously indecisive about replacing McClellan?

  8. If the officials who were ready to give up had been smart, they would have printed dummy census forms that included the citizenship question, shown them to Trump, and assured him that all was proceeding as planned. If Trump happened to see press reports to the contrary, they could have dismissed the stories as fake news. But it’s too late now.

    Why is it too late now? They could just tell Trump the question is on the form, Trump believes all sorts of nonsense.

    That being said, if they’re that openly insubordinate in defying their boss they need to be fired. I know Trump appointed Ross because Ross is a worthless piece of shit and Trump thinks those are the best people, but who else does Trump get to appoint at Commerce and who does Ross get to appoint? What percentage of the upper ranks at Commerce are civil service lifers? What about Ben Carson’s HUD – how much housecleaning did they do there and how much does Carson rely on people who hate his guts and want to do the exact opposite of everything he and Trump and the GOP want to do? Trump can’t just wave his tiny little hands and declare the swamp has been drained, it’s a Herculean (if not Sisyphean) task. Where are the outside consultants and analysts, the Bobs, that should have been brought in on Day One in each and every department and agency and told to fire the shit out of every single person they could? Trump’s got several million employees who are opposed to everything he stands for, why are they still drawing a paycheck?

    1. Civil service protections, mainly. And, for the first couple of years, the Senate was pretty openly hostile to most of his agenda; There were plenty of people he’d been informed the Senate would not even consider confirming replacements for.

      1. The alternative to firing is to make work so unbearable that people willingly leave. Maybe open offices in rural Mississippi or Alaska and staff them with malcontents.

        1. He’s actually been starting to do that.

  9. Airports in 1814.

    We held those.

    1. In all 57 states, right?

  10. He didn’t change his mind because we didn’t change our mind. Allow the citizenship question now or you’ll find yourselves in the stockades for treason. It’s absolutely shameful and disgusting how American citizens have intentionally pursued sanctuary policies in order to steal representation.

    1. Yeah and, uh – what are “sanctuary policies,” exactly?

  11. The Trump Administration’s Double Reversal on the Census Highlights the Difficulties of Dealing With a Mercurial President Who Rules by Tweet

    You say that as if it’s a bad thing or as if it’s unintentional.

    Why do you think Trump isn’t releasing his tax returns? He has Democrats running around in circles for months trying to get them.

    1. There’s no master strategy here.

      I get that people deep in the throes of TDS will instantly defend every single thing that Trump does, at any moment, as part of some master strategy or plan, but the rest of us are not bound to forget so easily or to remember so selectively. It’s very easy to see how Trump’s wild inconsistency on this point is undermining whatever legal argument he might ultimately try to make to include the citizenship question.

      Think, in other words, of what Trump might do if he actually cared about getting this question on the census, after the Supreme Court handed down its decision. Clearly, they needed to be able to proffer some kind of claim before the lower courts that wasn’t just as “contrived” as Ross’s VRA-enforcement claim. That would mean scouring internal correspondence for evidence; conforming to a coherent messaging campaign; and not testing the patience of the judges hearing the arguments.

      But Trump is doing literally none of that. He’s out there all but admitting it’s about disfranchising Democrats, positing some kind of overarching executive authority allowing him to ignore the procedural infirmities that sunk his case before a highly sympathetic Court, and keeping his own DOJ in a state of dark confusion over the plan.

      If this rampant incompetence is supposed to be some brilliant way to pwn the libs and keep Congress spinning, it’s an awfully counterproductive way to go about it.

      1. Actually people deep in the throes of TDS will hate anything he does.

        1. I use the term “TDS” to refer also to those so fundamentally deranged that they approve everything he does, including many Reason commenters.

          1. What is utterly “deranged” of you is that you believe that people like me are holding these beliefs because of Trump, rather than that Trump simply has fairly mainstream opinions that many political moderates have held for a long time. Including, I might add, many Democrats prominent until the early 2000’s.

            What is “deranged” is that people like you actually defend the bigoted, racist, anti-immigrant policies of the Democratic party as if it were in the interest of minorities and immigrants. You know, people like me.

            1. SimonP is a full on UN/State supremacist progressive.
              He doesn’t post often, but when he does – it’s typical progressive psychosis

            2. What is utterly “deranged” of you is that you believe that people like me are holding these beliefs because of Trump,…

              You don’t seem to understand.

              I describe certain Trump supporters as “deranged” because they will be right here on the boards defending his every move as part of some master plan, even if it ultimately gets reversed a week later, even if it later becomes clear how shortsighted the move was. The tariffs are a classic example. When they were first threatened, Trump supporters cooed about his prudence in holding off on imposing them; when he imposed them, they all agreed that trade wars are easy to win and would be painless; as time has dragged on and the trade wars have continued to impose costs on American consumers and producers, they all counseled that it would take time for their benefits to be realized; and so on.

              You, yourself, explain below that the census should include a citizenship question, just because it should. What you don’t seem to grasp is that Trump’s own argument for including the question was different – citing the need to enforce the VRA – and that rationale was itself rejected as pretextual (because it was). We now also have clear evidence that the whole point in including the question was to skew the census, specifically in a way that would benefit Republicans and whites.

              But you, deep in the throes of TDS, refuse to acknowledge any of that reality. Those facts are simply irrelevant. Trump, in your view, simply is expressing what “most Americans” want. But that fact is legally irrelevant and, more importantly, a red herring. The point of the census is not to reflect the popular will on who should be counted, but to get an accurate count of who’s here.

              1. SimonP
                July.7.2019 at 9:14 pm
                “You don’t seem to understand…”

                Oh, we understand entirely too well: You have it exactly backwards, but for a fucking lefty ignoramus, that is to be expected.
                Carry on, asswipe.

          2. SimonP
            July.7.2019 at 10:00 am
            “I use the term “TDS” to refer also to those so fundamentally deranged that they approve everything he does, including many Reason commenters.”

            You have it exactly backwards, but for a fucking lefty ignoramus, that is to be expected.
            Carry on, asswipe.

      2. Think, in other words, of what Trump might do if he actually cared about getting this question on the census

        He doesn’t “actually care”. Why would he? The question went on there because it’s a reasonable question to ask in light of the fact that we have tens of millions of illegal aliens residing in the country. Most Americans agree with Trump on this.

        It’s the Democrats who are losing their marbles over it and think it’s some kind of nefarious plot to undermine their party. Trump just does what most people do when faced with hysterical people: we first try to appeal to reason and if that doesn’t work decide it’s not worth it and move on to something else.

        I get that people deep in the throes of TDS

        You mean like you?

      3. SimonP
        July.6.2019 at 6:15 pm
        “There’s no master strategy here.
        I get that people deep in the throes of TDS will instantly defend every single thing that Trump does, at any moment,…

        You have it exactly backwards, but for a fucking lefty ignoramus, that is to be expected.
        Carry on, asswipe.

  12. This isn’t news; it’s gossip. How about a reasoned article about the history and purpose of the census, how it’s been used and abused?

  13. But it adds that when a state disenfranchises residents who otherwise would be qualified to vote in federal elections (at the time, male citizens 21 or older)

    While the obvious intent of this provision is to deal with the exclusion of people otherwise qualified to vote, the text refers explicitly to males 21 years of age or over. Which leads to the question of whether, if the provision were ever to be enforced, it would still be only on the basis of the exclusion of males over 21, with the exclusion of female voters, or of those 18 to 20, not sanctionable under this provision. And if the amount of such sanctions would still have to be calculated on the basis of the male-and-21 rule. A literal reading of the amendment would say yes.

  14. in which case the Supreme Court almost certainly would have approved the citizenship question.

    AAAHHHH HAHAHAHA

    No they wouldn’t have. John “A tax is a penalty!” Roberts would have found another superficial reason to cover for “ORANGE MAN BAD, DEMS GOOD”, just like in his ACA case. I mean the ruling as it was is a mess.

  15. […] for far too long. The group also discusses the Trump administration’s Census-citizenship gymnastics, the latest Nancy Pelosi/AOC flap, and what we can learn from revisiting the Tom Cruise flick […]

  16. […] for far too long. The group also discusses the Trump administration’s Census-citizenship gymnastics, the latest Nancy Pelosi/AOC flap, and what we can learn from revisiting the Tom Cruise flick […]

  17. […] for far too long. The group also discusses the Trump administration’s Census-citizenship gymnastics, the latest Nancy Pelosi/AOC flap, and what we can learn from revisiting the Tom Cruise flick […]

  18. […] kicked off a chaotic two weeks. Justice Department lawyers agreed on July 2nd to drop the matter. Trump tweeted on July 3rd that he told the Justice Department to keep fighting. A judge hauled […]

  19. […] kicked off a chaotic two weeks. Justice Department lawyers agreed on July 2nd to drop the matter. Trump tweeted on July 3rd that he told the Justice Department to keep fighting. A judge hauled […]

  20. […] kicked off a chaotic two weeks. Justice Department lawyers agreed on July 2nd to drop the matter. Trump tweeted on July 3rd that he told the Justice Department to keep fighting. A judge hauled […]

  21. Start making extra salary online from home. Start getting paid every month more than 15k just by doing simple work from home. Last month i have received $16428 from this easy home based online job. Everybody can try this job now by use the details on this link……..
    Follow this now…… http://www.salaryhd.com

  22. […] Trump’s census surrender, which represents the third time the administration has changed its plans regarding a citizenship question since the Supreme Court ruled against it two weeks ago, was weird […]

  23. […] Trump’s census surrender, which represents the third time the administration has changed its plans regarding a citizenship question since the Supreme Court ruled against it two weeks ago, was weird […]

  24. […] Trump’s census surrender, which represents the third time the administration has changed its plans regarding a citizenship question since the Supreme Court ruled against it two weeks ago, was weird […]

Please to post comments

Comments are closed.