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Good Luck to Trump’s New Census Lawyers. They’re Going to Need It.

Noah Feldman

(Bloomberg Opinion) -- We don’t know whether the Department of Justice lawyers working on the census case were fired en masse or quit. Either way, Sunday’s announcement was a genuinely shocking development in President Donald Trump’s efforts to add a citizenship question to the 2020 count. It’s bizarre to the point of being unprecedented for the government to change horses like this in the middle of such a highly time-sensitive legal process.

The move signals that the Trump administration is very likely on the way to making some doubtful legal claims — claims that will have to be in stark contradiction to what the Department of Justice has already said to the federal courts, including the U.S. Supreme Court, in a lawsuit brought by civil-rights groups trying to scrap the question.

In case your long July Fourth weekend was enjoyable enough to lose track of the census saga, here’s a recap.

On the last day of its term, June 27, the Supreme Court held in an opinion by Chief Justice John Roberts — joined by the court’s four liberals — that Commerce Secretary Wilbur Ross had not given an honest explanation for why he wanted to put a citizenship question on the 2020 census in the first place. Roberts also held — in a section of his opinion joined by the court’s four other conservatives — that, in principle, there is nothing unlawful or unconstitutional about asking people for their citizenship on the census. Roberts sent the case back to the district court in New York.

Under ordinary principles of administrative law, the government sometimes gets a redo after its actions are blocked for failing to follow proper administrative procedure. Roberts’s opinion left open the possibility of such a redo. If the Trump administration could give its real, true reason for putting the citizenship question on the census — and if that rationale was lawful and constitutional — then the district court could in theory approve the question.

The two looming problems for the Trump administration were time and the rationale itself. To get the Supreme Court to take the census case quickly, direct from the district court and skipping entirely over the court of appeals, the Department of Justice had told the court that it was effectively an emergency: The census forms had to be sent to the printer at the end of June to be ready for the 2020 count. If that was true — and the Justice Department is supposed to tell the truth when it’s explaining itself to the Supreme Court — then it was essentially too late to go through a protracted legal process to add the question.

To make matters worse, the fact that the Supreme Court upheld the lower court ruling that Ross’s rationale was a “pretext” (legal-speak for a lie) gave the Justice Department lawyers the unenviable task of going to their client, Ross, to ask what his real motive had been.

A few days later, on July 2, the Department of Justice dealt with these two problems by announcing it was giving up the case and wouldn’t ask for further legal review to get the citizenship question added. President Trump (on Twitter of course) then asked the Justice and Commerce departments to keep fighting.The next day, July 3, Trump denounced his own Justice Department’s official announcement as fake news, probably reaching a new height of absurdity in his use of the term. And so the Justice Department told the district court it wasn’t dropping the issue after all — but that it didn’t yet know what it would be saying when it came back to court.

Apparently the long holiday weekend didn’t yield any breakthroughs for the original legal team — because on Sunday, July 7, the Department of Justice announced the lawyers had been switched out.

Reading the tea leaves, we can first predict that Department of Justice is getting ready to tell the courts that it doesn’t need to print the census forms right away, despite what it told the Supreme Court. That is going to yield the lawyers some tough questioning and skepticism from the district court. It could also yield some skepticism from Roberts himself if the case gets expedited back to the justices again.

Either the old lawyers wouldn’t get up in court and say they had lied before. Or else the Trump Department of Justice bet that it was a bad idea to send the same lawyers to say the same thing.

Regardless, it would be a very bad look for the Department of Justice to admit it misled the Supreme Court to get the court to take a case without going through the usual appellate process. Even if the court’s die-hard conservatives are willing to cast a blind eye on this conduct, Roberts won’t like it.

More important, it undermines the credibility of the Department of Justice in all future cases before the Supreme Court.

The second likelihood we can glean from the tea leaves is that the Justice Department is poised to offer some new rationale for adopting the question.

It’s impossible to know for sure what that will be. But here’s one idea: The administration could state that it wanted to add a citizenship question in order to encourage states in the future to create legislative districts based on the population of citizens, not of all residents.

This was the rationale first proposed by the late Thomas Hofeller, the Republican strategist who seems to have come up with the idea — at least according to documents on a hard drive that his daughter inherited from him and made available to the lawyers in the census case this spring.

According Hofeller’s suggestion, this approach to redistricting would benefit the representation of Republicans — and white non-Hispanics.

The administration might try to adopt the constitutional part of the Hofeller rationale (benefiting Republicans) while dropping the unconstitutional part (benefiting white people).

Apart from this risky distinction, there’s one further problem. After the hard drive was released, but before the Supreme Court ruled, the Department of Justice stated that Hofeller’s document “played no role in the department’s December 2017 request to reinstate a citizenship question to the 2020 decennial census.”

Maybe new lawyers can walk that one back, too.

To contact the author of this story: Noah Feldman at nfeldman7@bloomberg.net

To contact the editor responsible for this story: Stacey Shick at sshick@bloomberg.net

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Noah Feldman is a Bloomberg Opinion columnist. He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “The Three Lives of James Madison: Genius, Partisan, President.”

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