President Donald Trump is expected to announce Thursday that he is taking executive action to add the controversial citizenship question to the 2020 census despite the Supreme Court’s recent ruling that the administration didn’t provide an adequate reason as to why the question was necessary.
Trump tweeted that he will hold an afternoon press conference in the Rose Garden following his social media summit at the White House. The announcement, he said, will be focused on the census and citizenship.
Last week, the president told reporters that the administration was “looking into” issuing an executive order that would mandate the question be added to the census. The remark came after Trump appeared frustrated with the lack of progress in the courts.
But legal experts say that any executive action taken by Trump is unlikely to be held up in court. Congress is responsible for setting the guidelines for the census count, not the executive branch.
“Every way forward for the citizenship question is a dead end,” Thomas Wolf, counsel for the Democracy Program at the Brennan Center for Justice, told Newsweek. Further efforts by the White House to add the question makes it clear that they are trying to turn the census into a partisan issue, he added.
“The president has a responsibility under the Constitution, which he is charged to uphold, to obey the law. Adding a citizenship question does not obey the law, it mocks it,” Wolf said.
Article I of the Constitution specifically gives Congress the power to control census operations. Congress then delegated part of that responsibility to the Department of Commerce, as long as the agency acts lawfully within the Administrative Procedures Act.
The APA mandates that officials must offer a reasonable explanation as to why they take certain actions. Commerce Secretary Wilbur Ross told Congress and the courts that the citizenship question was needed to enforce the Voting Rights Act.
But the Supreme Court ruled in June that Ross’ hurried decision to add the question was “arbitrary and capricious.” Chief Justice John Roberts wrote in his opinion that a citizenship question may be permissible in the future if the government is able to rationally validate their decision to include the inquiry.
Following the court’s decision, Trump quickly fired off a new list of reasons for the question to be added that had not previously been stated by the Commerce Department or the Justice Department.
“You need it for Congress for districting, you need it for appropriations, where are the funds going, how many people are there, are they citizens or not citizens?” he told reporters. “You need it for many reasons.”
The next problem for the Trump administration, then, is to prove that these motivations are not illegal or unconstitutional. Critics to the citizenship question argue that it is racially discriminatory and aimed at driving down Hispanic response rates to the census in order to increase white Republican power through redistricting. If that is the case, the administration would be in violation of the Fifth Amendment.
Last week, a federal judge allowed a case to move forward that claimed the citizenship question is intended to discriminate against communities of color by adding the inquiry. At the center of that case is an email exchange between the late Republican consultant Thomas Hofeller and a longtime Census Bureau official. In the emails the two discussed how the citizenship question would aid GOP efforts to gerrymander districts to the disadvantage of Democrats.
It is still ultimately unclear what Trump will announce during the press conference on Thursday. If he does decide to move forward with an executive order, advocacy groups like the American Civil Liberties Union say they will challenge him in court.
Dale Ho, director of the ACLU’s Voting Rights Project, said today:
“The Supreme Court has spoken. The Trump administration’s effort to add a citizenship question to the 2020 census is unlawful. If President Trump takes executive action, we will take legal action.”
Despite the limited success Trump would have with his executive action, legal experts note that his defiance of the courts is concerning.
Elie Hong, a former federal prosecutor, tweeted on Thursday that Trump’s impending statement could be a “dangerous moment.”
“If Trump announces, ‘We are going back to the courts and here’s what we will argue’ – ok, that’s fair game,” Hong wrote. “But if he simply defies the Supreme Court’s ruling, that is lawless and threatens our fundamental system of government.”
Wolf echoed Hong’s analysis, adding that attempts to defy the courts “never go well for America.”