‘I believe SCOTUS would affirm’: Trump mulling executive order on 2020 census citizenship question

WASHINGTON, DC - JUNE 24: U.S. President Donald Trump signs an executive order imposing new sanctions on Iran in the Oval Office at the White House on June 24, 2019 in Washington, DC. (Photo by Mark Wilson/Getty Images)
(FILE PHOTO by Getty)

Senior Trump administration officials reportedly confirmed early Thursday afternoon that the president is mulling using an executive order to force a citizenship question onto the 2020 census.

“The administration is considering the appropriateness of an executive order that would address the constitutional need for the citizenship question to be included in the 2020 census,” an unnamed senior official said to Axios.

Moreover, according to former Fourth Circuit Judge J. Michael Luttig, who served on the appeals court from 1991 to 2006, if President Donald Trump does pursue this route, it’s highly likely that the Supreme Court will REAFFIRM his executive order.

If the president of the United States were to issue an executive order, supported by his full Article II powers, directing that the citizenship question be included in the 2020 census, I believe the Supreme Court would affirm the constitutional power of the president to include the citizenship question in the census,” he said to Axios.

This is fundamentally important because it was exactly a week ago when, led by Chief Justice John Roberts, the high court’s liberal justices punted the case back to the lower votes, thus effectively blocking the citizenship question from being included in the census.

To be clear, the court didn’t block the citizenship question because the question inclusion in the census would be illegal — it did so because it was unsatisfied with Department of Commerce Secretary Wilbur Ross’s rationale for why a citizenship question is needed. A satisfactory rationale was required because the legitimacy of the citizenship question had been challenged by several left-wing groups.

Following that potentially disastrous decision, which as Rep. Andy Biggs explained Wednesday could ultimately water down the votes of actual citizens, the president told reporters he was looking “very strongly” at possibly delaying the 2020 census altogether to give his administration more time to convince the lower courts of why a citizenship question is necessary.

“Yeah, we’re looking at that,” he said when asked Monday about a potential delay. “We think that a census — obviously, if you do all of this work and you’re talking about — nobody can believe this, but they spend billions of dollars on the census, and you’re not allowed to ask?”

“You don’t knock on doors of houses, check houses? You go through all this detail and you’re not allowed to ask whether or not somebody is a citizen? So you can ask other things, but you can’t ask whether or not somebody is a citizen? So we are trying to do that. We’re looking at that very strongly.”


But a day later, Ross appeared to suggest otherwise.

“I respect the Supreme Court but strongly disagree with its ruling regarding my decision to reinstate a citizenship question on the 2020 Census,” he said in a statement.

The Census Bureau has started the process of printing the decennial questionnaires without the question. My focus, and that of the Bureau and the entire Department is to conduct a complete and accurate census.”

This led to the media assuming that the president had capitulated.

In a tweet posted Wednesday, the president made it clear that no, he hadn’t capitulated.

“The News Reports about the Department of Commerce dropping its quest to put the Citizenship Question on the Census is incorrect or, to state it differently, FAKE! We are absolutely moving forward, as we must, because of the importance of the answer to this question,” he wrote.

Less than 24 hours later, it was confirmed by Axios that he really wasn’t joking.

“We didn’t come this far just to throw in the towel,” one senior administration official said to the outlet.

But in case Trump loses this battle as well — which seems unlikely at the moment, given Luttig’s remarks — the administration has a plan in place for dealing with the loss.

“I think that there’s a good argument to be made that even though the president may lose in litigation at the end of the day, going through that process ultimately makes it clear that it’s the chief justice, and not the Executive Branch, that bears responsibility for that unfortunate outcome,” a source reportedly familiar with the administration’s thinking said.

The plan would basically be to just blame Roberts, whose reputation among conservatives is already in tatters because of his widely panned decisions on everything from Obamacare to the census question.


As noted earlier, though, it’s unlikely the president will ever concede defeat, given how passionate he and his allies are about including a citizenship question on the census. Speaking Wednesday evening on Fox News, Biggs pointed out that this isn’t about gathering meaningless statistics but rather about counting the number of citizens to determine congressional districts.

“In the Constitution itself, the reason that you take a census is not to find out how many toilets or stoves or refrigerators or TVs or cell phones you have,” he explained. “It’s to apportion the voters for congressional districts. That’s really what the census was all about.”

He continued by outlining the repercussions of an improper count.

“If you’re counting illegal aliens who are in this country, people who cannot vote because they’re here illegally, you are actually watering down the votes of people who are here legally,” he said.

“California gets a disproportionate number of congressional seats and electoral votes for the president, than, say, Wisconsin, that has far fewer illegal aliens in their population.”

At the end of day, it’s “a fairness issue,” he concluded.




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