Last week President Trump sent the Department of Justice into a tailspin by publicly insisting that he planned to defy the Supreme Court ruling which found that the government's rationale in the census citizenship question case was so "contrived" that not even Chief Justice John Roberts could stomach it. Lawyers at Justice had already acquiesced to the ruling, as expected, when Trump started blathering about how they had several ways to get the question on the census anyway, including simply issuing an executive order.
When the press asked him about it on July 5, Trump said this:
We're thinking about doing that, we have four or five ways we can do it, it's one of the ways we're thinking about doing it very seriously. We can start the printing (of the census forms) now and maybe do an addendum after we get a positive decision, so we're working on a lot of things, including an executive order.
Not long after that, the government lawyers who originally worked on the case suddenly dropped out. This was presumably because they could not ethically go back to the court and make a different argument than the one they'd originally made, particularly since they had insisted that the case had to be fast-tracked in order to make a drop-dead deadline that was clearly no longer operative. The judge in the case refused to allow the change, however, saying that the government had failed to provide a proper reason. At this point, the legal case was a train wreck but Barr and Trump nonetheless kept insisting they would get this done by hook or by crook.
Barr gave an interview to the Associated Press early in the week in which he declared that he agreed with Trump that the Supreme Court decision was wrong and that he thought there was “an opportunity potentially to cure the lack of clarity that was the problem and we might as well take a shot at doing that.”
"Take a shot" didn't sound very optimistic, and for good reason. Ending up back in front of the chief justice and telling him that, hey, they had only been kidding about fast-tracking the case before and that their new rationale was the honest truth this time, they promise, seemed like a shaky strategy that not even Barr would relish pursuing. So most legal observers believed the administration would pursue an executive order, print the forms and face the constitutional confrontation that was bound to follow.
After all, Trump doesn't understand anything about the Constitution, while Barr and his "unitary executive" cronies see Trump as an instrument to enshrine their monarchical philosophy. Perhaps this would be the case that would put the judiciary on notice that it too is a secondary branch with has very limited power to second-guess the executive, just like the Congress.
The rationale for doing this was vividly expressed by the conservative former federal judge Michael Luttig, who was quoted in the Washington Post pushing for the president to just do it:
The way forward is thus both obvious and urgent: President Trump, Attorney General William P. Barr, Commerce Secretary Wilbur Ross and [Secretary of State Mike] Pompeo ought to have a meeting when the president returns from the Group of 20 summit, and decide if such questions are necessary and, if so, why. If yes, then Barr should commit the conclusions to writing and prepare an executive order for the president’s signature directing the commerce secretary to add any such questions, and be prepared to defend the questions on the grounds discussed in the meeting. Nothing more is required.
Some conservatives assumed that when the case inevitably found its way back to the Supreme Court, Roberts would be fine with that. Common sense suggests otherwise: Roberts would have perceived this action for the slap in the face it certainly would be. He would likely have ruled against them again, opening the door for the president to defy the high court the same way he is currently defying Congress. If congressional leaders refuse to fulfill their duty of impeaching a lawless president, there's every chance Trump and his team would get away with it.
That's a scenario Barr would be quite happy to see unfold, but it looks as though they decided to save it for another day. There are plenty of cases coming down the pike that might serve that purpose. As it turns out, the administration has other fish to fry at the moment.
As Salon's Sophia Tesfaye reported on Thursday, the president and his men blinked on this one and decided not to push the issue on the census, instead opting for a Band-Aid executive order that will gather the citizenship information by other means. That approach was always available (as opponents of the census question constantly pointed out) but at this point the administration loses nothing don't lose much by going back to it. One of the main purposes of the citizenship question was to intimidate non-citizens into refusing to fill out the forms, leaving urban areas with lots of people uncounted. That goal has likely been achieved. If this administration is largely incompetent, it excels at scaring immigrants.
But there's more to it than that. As we have now learned from the documents retrieved from the computer of late Republican operative Thomas Hofeller, the whole point of this exercise was to exclude a large number of non-citizens from the census count used to determine the number and location of congressional districts in each state. That would give GOP-controlled state legislatures a chance to draw districts that would help Republicans gain more seats.
On Thursday, Trump said straight out that "some states may want to draw districts based on voter-eligible population,” so they aren't even trying to hide this anymore. But Barr said something even more troubling at the end of his remarks. This isn't just about redistricting:
That information will be useful for countless purposes, as the President explained in his remarks today. For example, there is a current dispute over whether illegal aliens can be included for apportionment purposes. Depending on the resolution of that dispute, this data may possibly prove relevant. We will be studying the issue.
That "dispute" refers to a case just filed in Alabama in which the state argues that including undocumented immigrants when apportioning congressional seats deprives Alabama of its “rightful share of political representation,” on the premise that it's losing out to states with more non-citizens. Barr obviously sees this as the better vehicle to accomplish his goal: Fewer districts with likely Democratic majorities.
So the administration's decision to back off the census question may look like a surrender, but it wasn't the end of this drama by a long shot. It's only the beginning.