Why Trump’s Census Play Is Blatantly Unconstitutional

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President Donald Trump already suffered one stinging defeat when the Supreme Court invalidated his effort to add a “citizenship question” to the 2020 census. Now he’s decided to try again, threatening to issue an executive order commanding the Census Bureau to add the question to its survey, and ordering the Justice Department to defend his action in ongoing legal proceedings.

If Trump moves ahead, he will be threatening a centuries-old consensus that puts Congress in charge of the census. This legal foundation has been tested and reaffirmed repeatedly throughout American history—the last time when another Republican Party threatened by immigration considered modifying the census process to fit its political ends.

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Article One of the Constitution explicitly put the census in the hands of Congress, not the president. It provides that the first census “shall be made within three years after the first meeting of the Congress of the United States, and within every subsequent term of ten years, in such manner as [the House and Senate] shall by law direct.” The Constitution also explicitly granted Congress the final say when it came to reapportioning each state’s delegation to the House and Electoral College based on the census count.

Congressional authority was reinvigorated after the Civil War. The 14th Amendment, enacted in 1868, abolished the 1787 compromise counting slaves as 3/5 of a person and gave Congress new marching orders. It declared that “representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State.”

This insistence on persons, not citizens, was deliberate. While the 13th Amendment freed the slaves, it did not grant them the right to vote—and the Republican leadership in Congress did not yet have the votes to give them that right. Moreover, central players like Speaker Thaddeus Stevens and Senator Charles Sumner were strong allies of Elizabeth Cady Stanton and the rising feminist movement of the 19th century. They insisted on the inclusion of women in the head count as a first step toward their ultimate goal of female suffrage.

During this time, the president played no role in the reapportionment process. In the first decades of the 19th century, Congress relied on judicial marshals in the federal courts to collect census data from the states. But in 1840, it created a central office to assist it in the decade’s reapportionment. This Census Office, as it was then known, took its orders from Congress, and depended for its continuing existence on a series of legislative mandates during the next 60 years.

Only in 1902 did Congress establish a Bureau of the Census on a permanent basis, as part of its larger decision to create a new Department of Commerce. This created a complication, as the Department of Commerce was part of the executive branch and the statute did not specify the new Commerce secretary’s relationship to Congress in governing the Census Bureau’s operation.

The resulting statutory fog enabled Congress to put politics above duty to the constitutional text and 150 years of constitutional practice. In 1920, the bureau’s new census figures served as a day of reckoning for Republicans who had just scored a sweeping congressional victory over Democratic President Woodrow Wilson in 1918. The bureau’s report revealed that World War I had generated a tidal wave of European refugees seeking a new life in America, increasing the country’s population by 15 percent to 106 million. These immigrants overwhelmingly settled in the Northeast and Midwest, where the Democratic Party was ascendant, giving it an overwhelming advantage if Congress reapportioned seats in the House and Electoral College in the coming rounds of national elections.

Confronting the prospect of political defeat, the Republicans refused to commit electoral suicide. For the first and only time in American history, Congress violated the Constitution and continued to use the 1910 census figures rather than the 1920 ones, as the basis for the distribution of seats in the House and Electoral College for the next decade.

This brute subordination of constitutional responsibility to politics set the stage for an even greater crisis as the decennial head count approached in 1929, eventually leading to a high-visibility decision reaffirming Congress’ decisive control over the census operation. This time around, Republican President Herbert Hoover was in the White House and Republicans were in command of both houses of Congress. Would party leaders once again stack the deck against their opponents by continuing to use the 1910 numbers as a baseline for national competition for yet another decade?

To their great credit, the answer was no.

On June 9, the Republican Congress passed the Reapportionment Act of 1929, which imposed a statutory obligation on its successors to fulfill their constitutional obligations. The significance of this act of statesmanship has never been adequately appreciated. Only four months later, on October 24, the stock market crashed. If the Republicans had not tied their hands in June, the political temptation to continue the 1910 head count could well have proved irresistible—since continuing to apportion seats on the basis of the prewar population of 92 million residents provided their only hope of countering the effort by Democrats to gain a popular mandate for their New Deal from the 123 million people living in the United States of 1930.

If the Republicans had succeeded in hanging on to power, this would have generated a far more profound legitimacy crisis than the struggle precipitated by the court-packing episode of 1937, when President Franklin D. Roosevelt threatened to add justices to the Supreme Court to validate his New Deal reforms. But instead, the 1929 Act provided that “the director of the Census” was in charge of “the enforcement of this Act,” and was explicitly given the responsibility of assuring that all the relevant census forms were prepared by April 1 of the preceding year to ensure the orderly administration of the head count.

The Act also commanded that “the presidentshalltransmit to the Congress a statement showing the whole number of persons in each State” at the opening session of the House and Senate, “or within one week thereafter,” to enable Congress to proceed expeditiously with its constitutionally mandate reapportionment responsibilities.

Over the past century, many of the specific requirements and procedures handed down in 1929 have been revised, but the basic framework remains intact. In particular, the deadline for the final preparation of census forms has shifted from April 1 to July 1, and this date has served as a legal turning point in the ongoing legal battle. Chief Justice John Roberts delivered his majority opinion on June 27, four days before the deadline. Although he found that the bureau’s rationale for including the citizenship question was implausible and merely served as a “pretext” for an illegitimate political decision, he gave the bureau a chance to supply a more compelling justification before July 1.

But once the Justice Department team failed to fill this gap in this brief period, Trump found himself in a radically different situation.The president could have tried to provide the courts with a more persuasive rationale in the days remaining before July 1, but after that date, any attempt to do so would directly thwart Congress’ constitutional authority to insist that the count proceed in an effective and expeditious fashion.He could no longer pretend that the Census was following the law if it changed the form it had created for public distribution. He could only assert, in a series of combative tweets, that he retained the unilateral power to impose the citizenship question by an executive order.

Trump can tweet what he likes, but his lawyers are obliged to confront the constitutional texts, and statutory commands, that represent two centuries of historical experience with the problem of reapportionment. Little wonder, then, that Trump tried to fire his entire legal team Monday morning when they confessed to the district judge, Jesse M. Furman, that they were unable to provide him with a rationale for unilateral presidential action that seemed remotely plausible, and that Furman has now rejected Trump’s effort to replace them with a new legal team as “patently deficient.”

Given his track record of compliance with White House commands, Attorney General William Barr will undoubtedly ask the Supreme Court to reverse Furman’s decision, and give his new highly politicized team of lawyers a chance to rationalize Trump’s latest precedent-shattering assertion of unilateral authority.

I would rate his chances of success at zero. Since the chief justice has already rejected the bureau’s conduct as an “abuse of discretion,” it is impossible to believe that he will uphold the president’s direct intervention into a regulatory system that has profound roots in our constitutional tradition.

Roberts is rightfully concerned, however, with maintaining his court’s legitimacy in these polarized times. Since there were dissenters to his previous opinion, he may well try to avoid another show of disarray by persuading his colleagues to join him in a summary judgment, affirming Furman without the need for any elaborate opinion.

Regardless of his success on this front, Furman’s vindication will force Trump to ask himself a very big question. If he follows up on his threatened executive order, he will not only be defying the constitutional text, and two centuries of statutory practice. He will be in open defiance of the Supreme Court of the United States.

This represents the paradigmatic “high crime or misdemeanor” that served as the principal ground for the impeachment and near-conviction of Andrew Johnson during Reconstruction, and which has lurked in the background since Richard Nixon’s resignation during the Watergate scandal.

Is Trump willing to escalate his ongoing unilateralist campaign to provoke such a wrenching constitutional crisis?

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