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Blame Wilbur Ross For Clumsy Lies That Made A Mess Of Census

If you want to understand why the Trump administration is scrambling at the last minute to include a citizenship question in the 2020 census, you have to look beyond the lawsuits filed by Democrats anxious about the question’s political impact. The only reason that litigation produced a June 27 Supreme Court decision blocking the question was the blatant, bumbling mendacity of Commerce Secretary Wilbur Ross, whose rationale for the change Chief Justice John Roberts and four of his colleagues deemed “contrived” and “pretextual.”

Whether that conclusion should make a legal difference is a matter of dispute; four justices thought it shouldn’t. But if Ross, whose department includes the Census Bureau, had told the truth — or even if he had been better at lying — census forms with the citizenship question would already be rolling off the presses.

The evidence that Ross’ official explanation — that the Justice Department needed better data to enforce the Voting Rights Act — was not the real reason for his decision persuaded three federal judges as well as a majority of the Supreme Court. It is not hard to see why.

“In the Secretary’s telling,” the court said, “Commerce was simply acting on a routine data request from another agency. Yet the materials before us indicate that Commerce went to great lengths to elicit the request from DOJ (or any other willing agency).”

That record shows Ross “began taking steps to reinstate a citizenship question about a week into his tenure, but it contains no hint that he was considering VRA enforcement in connection with that project.” After making the decision for reasons he has yet to reveal, Ross spent months trying to gin up a respectable excuse.

Under Ross’ instructions, his policy director “initially attempted to elicit requests for citizenship data from the Department of Homeland Security and DOJ’s Executive Office for Immigration Review, neither of which is responsible for enforcing the VRA,” the court said. “After those attempts failed, he asked Commerce staff to look into whether the Secretary could reinstate the question without receiving a request from another agency.”

The VRA rationale originated not with the Justice Department, as Ross repeatedly claimed, but with Commerce Department staffers trying to satisfy their boss’s demands. The DOJ was unwilling to write this cover story until Ross persuaded the attorney general to intervene, and even then, “the record suggests that DOJ’s interest was directed more to helping the Commerce Department than to securing the data.”

The DOJ letter requesting a citizenship question was not written until nine months after Ross had made his decision, and it “drew heavily on contributions from Commerce staff and advisors.” Furthermore, “After sending the letter, DOJ declined the Census Bureau’s offer to discuss alternative ways to meet DOJ’s stated need for improved citizenship data,” reinforcing the impression that the VRA justification was phony.

Why does it matter? “In order to permit meaningful judicial review, an agency must ‘disclose the basis’ of its action,” the court said. “The reasoned explanation requirement of administrative law … is meant to ensure that agencies offer genuine justifications for important decisions, reasons that can be scrutinized by courts and the interested public.”

The court left open the possibility that the Commerce Department could try again, this time without lying. It noted that the commerce secretary has wide discretion to determine the contents of the census and that review of such decisions is “deferential.”

The Trump administration now faces two problems. First, while there are plenty of plausible nonpartisan reasons for asking about the legal status of U.S. residents in the census, coming up with one at this late date will smack of desperation.

Second, the administration has insisted all along that it needed to start printing forms by last week to keep the census on schedule, which is why its appeal in this case went straight to the Supreme Court. The administration has weaved a tangled web for itself that will be hard to escape.

IMAGE: Wilbur Ross testifies before a Senate Commerce, Science and Transportation Committee confirmation hearing on his nomination to be commerce secretary at Capitol Hill in Washington, U.S., January 18, 2017. REUTERS/Carlos Barria

Jacob Sullum is a senior editor at Reason magazine. Follow him on Twitter: @JacobSullum. To find out more about Jacob Sullum and read features by other Creators Syndicate writers and cartoonists, visit the Creators Syndicate webpage at www.creators.com.

In Census Case, Judge Questions Trump’s ‘New’ Reasons For Citizenship Query

Reprinted with permission from Alternet.

In a new filing before the U.S. District Court in Maryland, the Trump administration said on Friday that it is still pursuing potential avenues to include a citizenship question on the 2020 Census, despite the Supreme Court’s recent ruling blocking such a move.

Chief Justice John Roberts argued in a majority ruling that because Commerce Secretary Wilbur Ross had provided a “contrived” justification for including the question, falsely citing concern for the Voting Rights Act as his even in light of contradictory evidence, the department would be blocked from moving forward.

Now the Justice Department and the Commerce Department have said that they are examining other potential reasons for including the question in a filing before Judge George Hazel in Maryland. If the administration comes up with a new reason for including the question, the lawyers argued, it will constitute a new decision, and thus wouldn’t be blocked by the Supreme Court’s recent ruling.

“Any new decision by the Department of Commerce on remand providing a new rationale for reinstating a citizenship question on the census will constitute a new final agency action,” they wrote in the filing.

But in his response, Judge Hazel subtly mocked this notion, putting scare quotes around the word “new.” This suggested the obvious fact that there’s nothing new about the administration’s attempt to conjure up a rationale. The administration’s actions clearly show it has already decided that it wants to include the citizenship question — quite obviously because it hopes to discourage certain populations from answering the survey and thus biasing electoral maps against Democrats — and it’s just trying to cook up an excuse that the judiciary can accept.

Judge Hazel used quotes around the word “new” twice, emphasizing how transparent the administration’s attempts to dupe the courts are:

The Court has received and appreciates the discovery plans submitted by both sides. It appears that while the parties agree to the parameters of the proposed schedule, Defendants take the view that discovery on the remaining equal protection and Section 1985 claims should be put on hold pending a “new” decision being reached by the Commerce Secretary. While there is some degree of logic to Defendants’ position, the Court disagrees based on the unique circumstances of this case.

Plaintiffs’ remaining claims are based on the premise that the genesis of the citizenship question was steeped in discriminatory motive. The discovery contemplated by the Court related to the recently discovered evidence in this casc goes directly to that issue. Regardless of the justification Defendants may now find for a “new” decision, discovery related to the origins of the question will remain relevant. Given that time is of the essence, therefore, the prudent course is to proceed with discovery. As both sides acknowledge, the schedule may be adjusted as circumstances warrant.

Hazel also suggested that he sees through the Trump administration’s ploy by referring to the “unique circumstances of this case.” By that he meant, it seems, the circumstance in which the government has been outright lying.

As to the substance of the judge’s order, he concluded that the plaintiffs who are suing the administration, claiming that the question was included with discriminatory intent (as recently revealed emails strongly indicate), can proceed to the discovery phase of their case over the departments’ objections. That means the plaintiffs should be able to receive new evidence about how the citizenship question decision came about, potentially shedding more light on the administration’s corrupt intentions.

IMAGE: US District Judge George Hazel of Maryland.

House Oversight Committee Threatens Contempt Citations In Census Fight

Reprinted with permission from Alternet.

Rep. Elijah E. Cummings, chairman of the House Oversight Committee, warned on Wednesday that the committee will proceed with a contempt of Congress vote next week if Attorney General William Barr and Commerce Secretary Wilbur Ross don’t provide un-redacted copies of documents pertaining to the 2020 U.S. Census by “close of business” this Thursday, June 6.

Cummings and other Democrats have raised concerns about the Trump Administration’s decision to add a question on citizenship to the 2020 Census, and the documents that House members have subpoenaed could shed light on that decision.

The House Oversight Committee press release also mentioned that on Tuesday, June 4, the Commerce Department  “finally relented to demands to schedule transcribed interviews for three current and former Department officials who were involved with adding the citizenship question, avoiding a public vote on the subpoenas this morning. These requests had been outstanding for months.”

The documents that the House Oversight Committee subpoenaed on April 2, according to its press release, include a “secret memo” from the Commerce Department to the U.S. Department of Justice (DOJ), drafts of a DOJ letter requesting the citizenship question for the 2020 U.S. Census, and un-redacted e-mails from Ross and his staff.

Ross, the House Oversight press release notes, has “testified” that he “added the citizenship question ‘solely’ at the request of DOJ to help enforce the Voting Rights Act, but e-mails show that he began pushing to add the citizenship question as soon as he took office in 2017 and engineered the request from DOJ. Unfortunately, many of these e-mails are heavily redacted.”

The House Oversight press release also notes that three former or current Commerce Department officials “have refused for months to come in for voluntary interviews.” Those officials are James Uthmeier, former senior advisor and counsel to the Commerce Department secretary; General Counsel Peter Davidson; and Earl Comstock, deputy chief of staff and policy director.

 

Second Federal Judge Blasts Commerce Secretary’s Census Scheme

A federal judge slammed Commerce Secretary Wilbur Ross on Wednesday for breaking the law and violating the Constitution in a scheme to manipulate the 2020 census. The case, initiated by a lawsuit from the state of California, revolves around a citizenship question Ross wants included on the census.

In his 126-page ruling, Judge Richard Seeborg found that Ross violated both the Administrative Procedure Act and the Enumeration Clause of the Constitution.

Seeborg wrote that Ross engaged in “a cynical search to find some reason, any reason, or an agency request to justify that preordained result” rather than working within the confines of the law.

A citizenship question on the census would result in undercounting Latinos and undocumented people living in the United States, thus undermining the very purpose of the decennial census.

In fact, Ross knew the impact of adding such a question and moved forward with his attempt anyway. Seeborg recognized the “unrefuted evidence” from Census Bureau staff showing a citizenship question would depress response rates among Latino and noncitizen communities.

California, home of the largest number of Hispanic people, argued that any effort to undercount people living in the state could impact their representation in both Congress and the electoral college, since both are based on population. In fact, the Washington Post previously reported that the overall result would benefit Republicans for the next decade.

Further, census data is used to allocate federal funds, so undercounting certain segments of the population could have dramatic impacts on both state and local funding formulas.

In the end, Seeborg found that Ross “acted in bad faith” throughout the process.

This was the second federal court to rule against the Trump administration’s racist attempts to undercount Latinos in the 2020 census. Earlier this year, Judge Jesse M. Furman of the U.S. District Court for the Southern District of New York ruled Ross made “egregious” violations of the law in his attempt to add the question.

The Supreme Court has agreed to hear a case based on Furman’s ruling, with arguments scheduled to take place on April 23. The court will ultimately decide if the Trump administration’s racist attempts to manipulate the census are out of bounds.

Published with permission of The American Independent.