On Thursday, at a press conference in the White House Rose Garden, President Donald Trump reversed course on his administration’s long-running effort, recently halted by the Supreme Court, to ask respondents to the 2020 census whether they are citizens. Attorney General Bill Barr took time to bat down stories that Trump had explored the possibility of doing an end-run around the court by ordering the question’s inclusion. Barr said the administration had never tried, and would never try, to overrule the court’s decision by “executive fiat.” Trump, he said, understood that the Supreme Court’s ruling was binding and final, and suggestions to the contrary were “rank speculation and nothing more.”
But two of the most prominent members of the Texas congressional delegation—Congressman Chip Roy and Senator Ted Cruz— had urged the administration to circumvent the court’s ruling and direct the agency to add the question. After the high court decision last week, Roy tweeted that Trump “should ignore” the lawyers advising him and “print the census with the question and issue a statement explaining why – ‘because we should.’” Earlier this week, Roy signed a letter along with eighteen colleagues, including Texans Michael Cloud and Louie Gohmert, urging the president to push ahead, and Cruz went on Fox News, creatively interpreting the court’s decision as one that gave the president a green light, adding that “they need to do it.”
Absolutely. It’s the lawyers advising him. @realDonaldTrump should ignore them. Completely. Print the census with the question – and issue a statement explaining why – “because we should.” Done. https://t.co/ExyvRAmzoN
— Chip Roy (@chiproytx) July 3, 2019
Before Roy ran for Congress, he spent time as Cruz’s chief of staff in Washington, D.C., at a time when one of Cruz’s primary messages concerned the lawlessness of the Obama administration. In a 2012 op-ed about Obama’s “assault on the Constitution,” he wrote that Obama had “brazenly tried to bully the Supreme Court into abdicating its duty to the Constitution.” That was a reference to some remarks Obama made during a State of the Union address—yet here were Cruz and his man in the House urging the president to find a way to circumvent the nation’s highest court. What happened?
The Schoolhouse Rock version of the Supreme Court is that it’s a neutral, nonpartisan body that makes rulings on pure law, but of course that’s never been the case. The court swung wildly from right to left to right again over the course of the 20th century, and it’s arguably more partisan than ever. But the idea that the court can countermand wrong actions by the other branches of government is one of the key supports for the rule of law. The statements of the two men struck a pretty sour note, in part because it represented a sort of double insult to the integrity of the court.
When Chief Justice John Roberts ruled against the administration, he wrote that he would have been inclined to allow the administration to add the question if they had not lied to the court about why they had tried to do so. Initially, the government told the court that the question had been added because the Justice Department had requested it to help enforce the Voting Rights Act. But it was revealed in court that the request, in the form of a letter, came after the decision had been made.
One of the authors of that letter was Republican gerrymandering guru Thomas B. Hofeller. When he died, his daughter found on his computer an analysis of Texas state legislative districts drawn to reflect only the citizen population of Texas, rather than all people, as the Supreme Court has previously directed states to do. Those districts, he said, “would be advantageous to Republicans and non-Hispanic whites,” but to draw them the government would need detailed information on citizenship from the 2020 census. The administration’s intent, in other words, was to supercharge gerrymandering by Republican state legislatures. (Though Trump administration lawyers denied this in court, Trump and Barr have now repeatedly admitted this.) Immediately after the election, Hofeller began urging Trump to add the question.
Still, the Supreme Court seemed inclined to allow the citizenship question, even with the impure intent. What tripped up the administration was its ham-fisted attempt to pretend it was doing something else. Writing for the majority, Roberts set out a clear path for how the administration could justify the inclusion of the question: come up with a better reason, and be able to justify it with a paper trail. To posit that Roberts’s decision is wrong and should be effectively ignored is to take the position that it should be permissible for the executive branch to lie to the Supreme Court, that the administration should suffer no consequences for doing so, and that the court can be selectively ignored. You don’t have to oppose the census question to recognize that these are grave questions for a constitutional republic.
But even at the level of self-interest, what Cruz and Roy want doesn’t make a lot of sense for Texas. Simply put, the inclusion of the citizenship question is not in the material interest of Texas. Many experts believe it would result in an undercount of citizens living in communities with a high number of undocumented residents, as people in those communities may already be wary of sharing personal data with a government run by Donald Trump. The undercount would mean Texas loses out on federal funding, which is apportioned using census data. It could also shrink the size of the state’s congressional delegation. But it would benefit the Republican Party by giving the 2021 Legislature the ability to produce better-gerrymandered districts than ever before. (Neither Cruz nor Roy were available for comment at press time.)
In other words: good for the party, bad for the state. The “Case of the Census Question” has been a dispiriting collage of bad faith and anti-democratic sentiment from the beginning, and Cruz and Roy’s position is a small part, but it might be worth remembering the next time the two serve under a Democratic president and they start talking about executive authority and the rule of law.