The Trump administration’s effort to add a citizenship question to the 2020 census is a farce attempting to be a tragedy. The initial claim – that the question was needed to enforce the Voting rights Act – was so obviously pretextual that Justice Roberts had to join the Court’s liberals to strike it down (even though, as Adam Serwer points out, four justices don’t seem to care that they were being lied to). Printing of the forms commenced, and everybody thought the case was dead, until Trump tweeted new policy and forced the Justice Department attorneys to humiliate themselves in court. The DOJ then attempted to replace all the attorneys on the case without specifying why – though most informed commentators assumed that this was because the original attorneys felt ethically uncomfortable with whatever they were about to be asked to do, such as reverse themselves on positions that they had insisted upon before. A federal judge rejected that request today. There is supposedly a new rationale coming for the question, maybe by way of an unconstitutional executive order, because William Barr says so. Any minute now. The difference is that this new rationale will be delivered for self-evidently pretextual reasons, rather than just evidently pretextual ones (Joseph Fishkin outlines what he thinks is wrong with the best argument the DOJ can likely produce here).
Another development that has gotten less attention is perhaps particularly intriguing. The government has insisted over and over and over that the census had to be at the printer’s by June 30. The ACLU has now asked the court system to enforce those words, effectively closing the case. As Marty Lederman usefully summarizes:
“The plaintiffs' "motion to amend" cites chapter and verse--many chapters and many verses--of the ways in which DOJ has insisted to Judge Furman and to the Supreme Court (among others) that June 30 was a hard-and-fast deadline. The motion also explains that the courts and the parties relied upon those representations. DOJ's assertion of a June deadline was the reason that Judge Furman himself, for instance, expedited discovery, trial, and briefing schedules. "[T]ime is of the essence," he wrote, "because the Census Bureau needs to finalize the 2020 questionnaire by June of this year.” See also id. at page 191. The Solicitor General also invoked the June 30 deadline as the basis for his extraordinary request for the Supreme Court to grant certiorari "before judgment" (i.e., to take the case before the court of appeals could consider it). "[T]he Census Bureau must finalize the census forms by the end of June 2019 to print them on time for the 2020 decennial census,” the SG explained to the Court. Accord id. at 13–14 (“the government must finalize the decennial census questionnaire for printing by the end of June 2019”), id. at 16 (referring to “the June 2019 deadline for finalizing the census form”). Again in his motion for an expedited briefing and oral argument schedule, the SG told the Court that "the questions presented must be resolved before the end of June 2019, so that the decennial census questionnaires can be printed on time for the 2020 census" (emphasis added). The June 30 deadline was also an essential part of the grounds on which the government successfully urged the Supreme Court to add the Enumeration Clause question to the case well after cert. had been granted.”
In other words, the courts should enforce estoppel against the government. This strikes me as hugely important, for a perhaps underappreciated reason: one of the worst things about Trump is his ability to corrupt everything he touches. He is systematically undermining the executive bureaucracy and the federal courts, in part by subjecting the system to an avalanche of lies and head-spinning reversals of position. Enforcing estoppel in this case would have the enormous merit of enforcing consequences to this game of dizzying reversals and lies-until-something-sticks (“animus laundering,” as Joshua Matz helpfully puts it). This would provoke an enormous tantrum – Trump almost never suffers consequences for anything – and I’m the last one to think he would learn anything. But it would provide at least some sort of check against the ongoing corruption of the judiciary. A world in which the government could argue x today and not-x tomorrow, in front of the same court and with impunity, is not one ruled by law.
As Lederman notes, the ACLU filing forces the DOJ to either: (a) admit it was right, and thereby effectively end the case, or (b) radically undermine its credibility and claim that what it really meant (Lederman found a filing that gives it a tiny bit of wiggle room here) was that June 30 was the deadline, unless Congress gives them more money.
Now the House is obviously not going to authorize more money to add the Tinpot Dictator’s citizenship question. So why say this? I wonder if there’s not a political rationale here. Let’s review what we know about Trump. First, he is a pathological liar and a bully. Second, whenever those ambitions are thwarted, he puts all his energy into blaming somebody else for Stopping a Really Good Thing. In this case, Trump and his cult are blaming the Supreme Court (this is their Court! How could it betray them?). But if they are forced to drop the litigation because adding the question costs money they don’t have, and getting money requires Congress, then – it’s the Democrats’ fault!
This doesn’t entirely add up – substantially because Trump seems to think he can issue executive orders to allocate money that Congress has refused to give him – but that fight pleases his base a lot. And petulantly basking in front of his adoring mob is something very much he likes to do.
Much to the consternation of early moderns like Grotius, Hobbes and Locke, the ancient orator Carneades famously argued for justice one day and against it the next. But as Quintilian notes, Carneades was a man of perfect probity: “the Academics argue both sides of a question, but live according to one side only, and the great Carneades, who is said to have spoken at Rome in the presence of the censor Cato just as vigorously against justice as he had spoken in defence of justice the day before, was a perfectly just man” (Institutio Oratoria 12.1.35). Trump, alas is no Carneades. He has the soul of a tyrant, if not yet the government of one. Plato: desire
“lives like a tyrant within him in all anarchy and lawlessness; and, being a monarch, will lead the man whom it controls, as though he were a city, to every kind of daring that will produce wherewithal for it and the noisy crowd around it” (Republic 574e-5745a).
Andrew O’Hehir reviews the case at Salon that Trump is “tyrant and a killer. He must be contained, neutralized, resisted, defeated and, if possible, humiliated.” Shutting down the census question on the grounds that pursuing it involves indulging pathological lying as though it were parrhesia would be a nice first step.
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