This has been a day of confusion on the subject of the inclusion of a question on the 2020 Census as to the citizenship status of members of households. The administration made a hurried push to include this question. Lawfare ensued with the case making its way to the Supreme Court. In a splintered ruling, the SCOTUS agreed that the administration had the authority to add the question, but, for reasons that remain rather opaque to me…beyond sucking up to the the liberals on the bench…Chief Justice Roberts concluded that the administration needed some reason and the reason they gave just, by gum, wasn’t good enough.
Over the weekend, President Trump made noises about pressing on with the question. Then yesterday, Justice informed the judge overseeing a related case — a judge who, we might add, is an Obama appointee, and yes there are Obama judges — claiming that the citizenship question is racist, that the Administration had folded.
Here’s the email from DOJ pic.twitter.com/PdyfK0a1hJ
— Daniel Jacobson (@Dan_F_Jacobson) July 2, 2019
Read my post on that decision, Trump Administration Folds On The Issue Of Counting US Citizens In The 2020 Census.
This morning, President Trump threw the matter into turmoil:
The News Reports about the Department of Commerce dropping its quest to put the Citizenship Question on the Census is incorrect or, to state it differently, FAKE! We are absolutely moving forward, as we must, because of the importance of the answer to this question.
— Donald J. Trump (@realDonaldTrump) July 3, 2019
See Bonchie’s coverage of that development BREAKING: Trump Calls Report He’s Surrendering On Census Citizenship Question False.
What followed was a hurried teleconference between the judge, and a couple of attorneys from Justice. These are the highlights:
U.S. District Judge George Hazel: [T]his morning I saw a tweet that got my attention. 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.
Josh Gardner, DOJ attorney: Your Honor … I’ve been with the United States Department of Justice for 16 years, through multiple Administrations, and I’ve always endeavored to be as candid as possible with the Court. What I told the Court yesterday was absolutely my best understanding of the state of affairs …
Gardner: 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 …
Judge Hazel: I assume, although maybe I’m wrong about this, that the parties aren’t suggesting I can enjoin the President of the United States from tweeting things. Maybe you are suggesting that. But I will say my initial reaction to that is to have some concern.
Joseph Hunt, assistant attorney general for the civil division: We at the Department of Justice have been instructed to examine whether there is a path forward, consistent with the Supreme Court’s decision, that would allow us to include the citizenship question on the census. We think there may be a legally available path under the Supreme Court’s decision. We’re examining that, looking at near-term options to see whether that’s viable and possible.
Hunt: And so to the extent we can identify an option for that to work, if we continue to examine the decision and believe that we have a viable path forward to that work, our current plan would be to file a motion in the Supreme Court to request instructions on remand to govern further proceedings in order to simplify and expedite the remaining litigation and provide clarity to the process going forward.
Judge Hazel: If you were Facebook and an attorney for Facebook told me one thing, and then I read a press release from Mark Zuckerberg telling me something else, I would be demanding that Mark Zuckerberg appear in court with you the next time because I would be saying I don’t think you speak for your client anymore.
According to NPR, Judge Hazel is giving the Adminstration until Friday to, as they say, sh** or get off the pot.
U.S. District Judge George Hazel is now giving the administration until Friday to decide whether it will enter into a written agreement that confirms it will no longer pursue including a citizenship question on census forms, plaintiffs’ attorneys Denise Hulett of the Mexican American Legal Defense and Educational Fund and Shankar Duraiswamy of Covington & Burling tell NPR. If the administration does not enter the agreement, the judge is prepared to start reconsidering recently resurrected discrimination and conspiracy allegations against the administration’s decision to add the question.
The formal deadline is 2 p.m.
This is all fun and games for the left but the fact of the matter here is that Hazel is not only hostile to what the administration is doing, he’s irrelevant. The only question hanging out there is whether Justice and Commerce can cobble together a plausible rationale that will pass the smell test for 5 justices on the Supreme Court.
No one really cares about the lawsuit in Hazel’s court because he doesn’t have the authority to impose an injunction preventing the mailing of the forms or their processing as that is an enumerated responsibility of the Executive in the Constitution. If he did try to do that, he would be in direct conflict with the Supreme Court which would have already allowed the question into the Census. The only reason his injunction is still in place is because the case in his court was not the one heard by the Supreme Court.
The strategy in Hazel’s court is to try to throw up enough obstacles to the Census going out with the citizenship question in a timely fashion that the Administration will have to fold. If the Administration makes it across the hurdle set by SCOTUS, the odds of a nothingburger case like the one here derailing the Census approaches zero. The single important thing that happened here was that the government was given an immaterial deadline to declare its intentions. If it doesn’t, the only thing happens is that a bunch of lefties get to masturbate to fantasies of Trump getting a comeuppance when the case Hazel is overseeing restarts.