Last week the Supreme Court decided that the census may not contain a question on whether a person is a citizen. For many of us who are not lawyers, that seemed an easy decision. The Constitution specifies the enumeration of persons, not citizens, although there is a bit of fudging with respect to Indians and people who don’t count as whole people. Additionally, tapes became available between the time the case was argued and when it was decided saying quite explicitly that the purpose of the question was to exclude certain groups, which meant that the government’s case to the Supreme Court was a lie.
The Justice Department said yesterday that the census forms were being printed without the question. Things seemed settled. And then the President tweeted.
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
A federal judge, George Jarrod Hazel, involved in the enforcement of the decision happened to be on Twitter and caught the tweet. He called a teleconference among the relevant lawyers. The transcript is here, and something of a hoot. It’s relatively short and worth reading, but I’ll excerpt some of the good parts.
So I guess the reason I wanted to have this call, obviously, we had our call — I guess it was yesterday; feels like a while ago, but I think it was yesterday — and then this 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 [counsel for the government] had shared with me yesterday.
The judge asks
Is the Government going to continue efforts to place a citizenship question on the 2020 census?
MR. GARDNER: Your Honor, this is Mr. Gardner. I want to back up just a step and say that 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 and, apparently, also the Commerce Department’s state of affairs, because you probably saw Secretary Ross issued a statement very similar to what I told the Court.
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.
I can tell you that I have confirmed that the Census Bureau is continuing with the process of printing the questionnaire without a citizenship question, and that process has not stopped.
One of the plaintiffs’ lawyers asks for a stipulated order that the printing go ahead without the question and a provision that the defendants not communicate the contrary to the public. Judge Hazel is concerned that they are talking about issuing the order to the President.
From another of the plaintiffs’ lawyers:
The President’s tweet has some of the same effects that the addition of the question would in the first place and some of the same effects on the 18-month battle that was just waged over the citizenship question. It leaves the immigrant communities to believe that the Government is still after information that could endanger them. If you add that to the interview that the President did, sharing that his reason for wanting the citizenship question on the form was so that the Government could distinguish between citizens and illegal aliens and how nonsensical that is, it has the effect of leading the public to believe that the Census is not only after that information but is willing to violate some of the provinces of protection that our plaintiff organizations have been trying to reassure communities about.
So we strongly believe that we’re going to need some affirmative commitment, whether it’s through a stipulation or by order of this Court, an affirmative commitment from the Government to counter misinformation wherever in the Government that it comes from, a commitment that they will respond quickly and comprehensively to that kind of misinformation.
Uh-huh, looks like she’s talking about the President.
Joseph Hunt, Assistant Attorney General for the Civil Division, says that they are looking at a way to come back to the court to justify including the question.
Judge Hazel wants the parties to come back Friday at 2 pm.
I either want a stipulation, as we’ve been discussing, indicating that the citizenship question will not appear on the census, or I want a proposed scheduling order for how we’re going forward on the equal protection claim that’s been remanded to this Court.
And there’s more good stuff. The transcript is definitely worth reading.
I am seeing speculation on Twitter that Trump’s blowup over this decision was the security emergency that caused Vice President Mike Pence to abort his trip to New Hampshire.
UPDATE: I just noticed that I failed to link the transcript and corrected that. Enjoy!