Census Citizenship Query Re-Do? Component I: Bit Of Truth (And Integrity) For The Purpose Of The Solicitor General

On Thursday, June 27, the Supreme Court held that Commerce Secretary Wilbur Ross's March 2018 order, directing the Census Bureau to add together a citizenship query to the 2020 Census questionnaire, "rested on a pretextual basis," i.e., that it "cannot live adequately explained inward terms" of the "sole stated reason" Ross offered--a purported asking past times the Department of Justice "for improved citizenship information to meliorate enforce [Section ii of the Voting Rights Act]."  "Our review is deferential," wrote Chief Justice Roberts, "but nosotros are 'not required to present a naiveté from which ordinary citizens are free.'" (quoting Judge Henry Friendly).  For a courtroom to "[a]ccept[] contrived reasons" for an agency action, he explained, would "defeat the role of the enterprise" of administrative police pull as well as homecoming judicial review no "more than an empty ritual."

The Court thus affirmed Judge Jesse Furman's "remand" of the Ross directive dorsum to the Secretary.

There's been some confusion nearly what it way to "remand" a directive dorsum to the agency inward this context.  Here, because Judge Furman also vacated the Secretary's directive (a vacatur the Supreme Court did non reverse), his additional "remand" gild that the Supreme Court affirmed did non possess got much, if any, legal effect, every bit Judge Furman himself explained:

[I]t is non solely clear what it would hateful to refrain from remand inward the circumstances of these cases.  By analogy to appellate litigation, a remand is arguably necessary to restore an agency's “jurisdiction” where an adjudicatory determination or formal rulemaking was nether review.  Here, past times contrast, Secretary Ross's “jurisdiction” over the 2020 census has presumably continued unabated throughout this litigation, as well as his ongoing obligation to execute his statutory duties with honour to the census volition locomote whatever remedy the Court orders.  Put differently, it is difficult to run across how the Court's determination whether or non to “remand” inward these cases could touching the Secretary's ongoing statutory authorization over the cast as well as content of the census questionnaire.  Having said all that, as well as if only to avoid confusion, the Court volition “remand” the illustration to the extent that such an gild is necessary to restore the Secretary's jurisdiction over the census questionnaire.  It goes without proverb that such remand is express to farther activity non inconsistent with the Court's Orders.

In other words, the remand only confirmed that "Secretary Ross retains the same statutory authorization over the census that he had before the Court’s determination today, provided (as always) that he exercises it consistent with the APA as well as applicable police pull (and the Court’s order)."

That's how the authorities is (appropriately) interpreting the vacatur as well as remand, likewise (especially when read amongst Judge Furman's preliminary injunction against adding a citizenship question).  As DOJ lawyers put the point to Judge Hazel on Midweek is that Ross's "basis for the citizenship query is firmly enjoined, vacated, and does non exist.")

And so that ought to live the halt of the matter, right?  Because fifty-fifty though Judge Furman as well as the Supreme Court nominally remanded the directive dorsum to Secretary Ross, where he was free, at to the lowest degree inward theory, to start anew (i.e., to number a novel directive with a novel rationale), the Department of Justice--including the Solicitor General--has repeatedly insisted to courts that in conclusion Sunday, June 30, was a difficult deadline for finalizing the cast of the census questionnaire.  Indeed, the Department of Justice represented to the courts that the cast of the questionnaire could non live changed afterward June without an additional appropriation of funds--something that's plainly non going to happen.  (More on this June deadline number below.)

Not only didn't Secretary Ross promulgate whatever novel directive past times June 30, but at that topographic point was never whatever peril the Census Bureau mightiness add together the citizenship query to the census cast past times then--or whatever fourth dimension presently thereafter.  As DOJ reportedly "told the White House that the illustration was a dead-end as well as that pursuing it would live a waste matter of time."  Thus, belatedly Tuesday afternoon, Department of Justice attorneys "confirmed" to counsel for the challenging parties inward the New York illustration "that the determination has been made to impress the 2020 Decennial Census questionnaire without a citizenship question, as well as that the printer has been instructed to start the printing process.”  Later that evening, some other DOJ lawyer told Judge Hazel, inward the District of Maryland, the same thing, as well as confirmed that the printer is at 1 time at locomote creating the questionnaire sans citizenship question.

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But so suddenly, belatedly Midweek afternoon, July 3, Jody Hunt, the caput of the DOJ Civil Division, announced that tomorrow (Monday) it is "shifting" the census cases "to a novel squad of Civil Division lawyers going forward."  That's deeply concerning.  It almost for certain way that some or all of the lawyers involved inward the cases are unwilling to contribute to or sign briefs that volition contradict the representations DOJ, as well as the SG, possess got made to the courts.  (The Post story reports that the a harbinger of indefensible arguments to come.  Why Consumer Protection?  Watch for the elevate David Morrell, lately appointed to live Deputy Assistant AAG inward accuse of that Branch.  He clerked for Edith Jones as well as Clarence Thomas, so worked at Jones Day as well as inward the White House Counsel's Office.  No surprise Barr would tap him to live inward charge.  The interesting query is whether whatever career lawyers handgrip to participate and, every bit I utter over inward this post, whether OSG is on-board, despite its before representations regarding the June thirty deadline.)

[UPDATE, July 8:  In an interview with the Associated Press, Attorney General Barr said the Trump management volition possess got some activity presently that volition permit the Census Bureau to inquire the citizenship question:  He said he believes there's “an chance potentially to cure the lack of clarity that was the work as well as nosotros mightiness every bit good possess got a shot at doing that.”]

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If DOJ on Fri does an about-face as well as at 1 time represents that Oct 31 is the "real" deadline, the  Department of Commerce yet won't live able to include a citizenship query on the census questionnaire unless as well as until Secretary Ross issues a novel directive, based upon a novel legal--and non-contrived--rationale.  Reportedly, "[c]ensus officials as well as lawyers at the Justice as well as Commerce departments scrapped vacation plans as well as spent their Independence Day seeking novel legal rationales for a citizenship question." 

In my adjacent post, I'll examine the possible rationales that the Secretary mightiness invoke.