The record shows that the Secretary 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. The Secretary’s Director of Policy did not know why the Secretary wished to reinstate the question, but saw it as his task to “find the best rationale.” The 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. 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 possibility that DOJ’s Civil Rights Division might be willing to request citizenship data for VRA enforcement purposes was proposed by Commerce staff along the way and eventually pursued. [...]
Theoretically, then, Ross can still find a way to insert the question into the census. But two factors work against him. First, the Trump administration has repeatedly told the courts that it must begin printing the census forms on June 30. It presented this deadline as essentially non-negotiable, apparently hoping to pressure SCOTUS into quickly upholding the question. That tactic may have now backfired, because the administration must print the forms in three days or else reveal it was lying about its timeline. (Census officials have said that the printing could be delayed until October, though that still may not leave the government enough time.) [...]
Thursday’s decision is complex and, at times, confusing. The liberal justices wrote separately to declare that the citizenship question should be blocked altogether as illegally “arbitrary and capricious.” The conservative justices wrote separately to assert that the court should afford more deference to the Commerce Department—an argument that reaches the heights of hypocrisy, especially in light of their recent assault on judicial deference to agencies. So neither bloc got exactly what it wanted. But make no mistake: Roberts’ compromise gives the liberals a qualified victory, one that should keep the citizenship question off the 2020 census. Ross’ own incompetence appears to have doomed his discriminatory scheme.
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