Thursday, June 27, 2019

Not So Fast

And yes, it gets complicated fast, but no, this opinion by Kennerly doesn't strike me as sound.

The fate of a question about citizenship on the 2020 census remains up in the air today. Although the Trump administration had hoped that the Supreme Court would clear the way for it to include such a question, the justices instead sent the issue back to the Department of Commerce. Chief Justice John Roberts joined the court’s four liberal justices in ruling that the justification that the government offered at the time for including the citizenship question was just a pretext. The decision left open the possibility that the Trump administration could try again to add the citizenship question, but the clock is ticking: The government has repeatedly told the justices, in urging them to resolve the case quickly, that it needs to finalize the census questionnaire by the end of this month.

That, however, barely tells the tale.  The Court remanded this case to the trial court (not really to the Commerce Department, but the ball is in their court) to reconsider the issue of the evidence for the decision.  As the Court's summary of the opinion puts it:

Several points, taken together, reveal a significant mismatch between the Secretary’s decision and the rationale he provided. 

That "mismatch" is what the trail court has to address (no, I'm not going into why and how; it's the status of the case I'm worried about).  Yes, the Supreme Court left the administration some "wiggle room," but the clock is ticking loudly.  In order to get the forms printed, Commerce has to decide on the questions by Monday.  Without court authority, they can't decide to do what they wanted to do before the suit was filed.  And if you think the trial court is doing to hear those arguments and decide the issue before the weekend, or the DOJ can even get a new injunction issued in this case by that trial court, then you really don't understand how courts function.

Things became even more interesting – and, for the justices, more complicated – earlier this week.  On Tuesday, the U.S. Court of Appeals for the 4th Circuit sent another challenge to the use of the citizenship question back to a federal district court in Maryland so that the lower court could consider, in light of the new evidence, whether Ross had added the question because he intended to discriminate against Hispanics. In a concurring opinion, Judge James Wynn suggested that U.S. District Judge George Hazel might want to consider whether to temporarily block the government from including the citizenship question on the census questionnaire. The 4th Circuit’s order led to another flurry of last-minute filings in the Supreme Court. In a letter to the justices on Tuesday afternoon, the federal government again implored the justices to go ahead and resolve the dispute over the citizenship question now, including the question whether Ross had intended to discriminate against Hispanics. The government had addressed this issue in its brief in the Supreme Court, Solicitor General Noel Francisco stressed. And in any event, because the census questionnaire needs to be finalized by the end of June, the 4th Circuit’s order makes it likely that the justices will inevitably have to tackle this question one way or another, so it would be better to do so now in this case, instead of having to do it on an emergency basis in the Maryland case.

That case was not before the Supreme Court, and they did not rule on it.  If the trial court decides to block the citizenship question, that's a second block unaffected by the Supreme Court ruling, and certainly one that can't be resolved by the printing deadline.  Roberts may have left the door open to new legal arguments, but he didn't suspend the Constitution or the enabling legislation setting the date of the census while these questions are pondered.*

It's all over but the crying; or the tweeting, which ever comes first.

*Although, as Dahlia Lithwick just said, the Commerce Department may suddenly discover they have to decide the wording by October.  Who knows?  Either way, responding to this case is not responsive to the case in the 4th Circuit, so time still doesn't seem to be in the Administration's favor.

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