President Trump’s tweets are often so absurd or ignorant as to be embarrassing, but every so often he lucks into a reasonable suggestion. Such is the case with his tweet today saying he wants a delay in the nation’s decennial census until courts can say whether a question about citizenship can be included therein.
The Supreme Court today issued a terrible decision, sending back to lower courts the question of whether the Trump administration’s proposed citizenship question was acceptably motivated. They did this even while a majority acknowledged that the question itself was within the authority of the secretary of commerce to make, and that the explanation offered for asking the question was objectively reasonable.
Other analysts will explain, as Justices Clarence Thomas and Samuel Alito did in separate dissents, why it is abominable for the courts to adjudge “the sincerity” of a rationale for executive decisions otherwise perfectly allowable. What concerns me immediately, as it did Trump, is more practical in nature. The putative deadline for printing the census forms is next Monday. There is literally no way for lower courts to carefully consider the question, much less for any appeals thereof, between June 27 and July 1.
Granted, there probably is some leeway, even in a slow-moving bureaucracy, to wait a few weeks or months before printing the forms. It might require some overtime work and cost more money, but it’s surely doable.
Courts, however, can be notoriously slow. Even “expedited” appeals can add delays. By requiring lower courts to try to divine the sincerity of the secretary of commerce, and ruling that the census may not include the question unless the courts have definitively decided that the secretary’s motives pass muster, the Supreme Court stacks the deck against inclusion of the question in time for the census to start on schedule.
Hence, the president’s Tweet: “I have asked the lawyers if they can delay the Census, no matter how long, until the United States Supreme Court is given additional information from which it can make a final and decisive decision on this very critical matter.”
It’s a good suggestion for his lawyers to look into. (And I’m not enough of a census expert to know the logistical and scheduling requirements involved.) As the effect of the Supreme Court’s decision might otherwise be to “run out the clock” against the administration’s plans, even if the ultimate decision turns out to be in the administration’s favor, then it only makes sense for the administration to ask if the equivalent of an overtime period is allowed.
In sum, it appears that a majority of the justices’ unpredictable and delicate sensibilities are offended by the motives behind the citizenship question, so they set up a situation where an otherwise perfectly legitimate question can get precluded by the passage of time. This time crunch is entirely a judge-created problem. As Justice Thomas wrote in a stinging dissent, “his colleagues’ decision “enables judicial interference with enforcement of the laws.”
If judges interfere with a legislative-executive function mandated by the Constitution itself, then the executive surely should be able to ask the courts to provide safe harbor for handling the problem. President Trump is right: The court must provide time for its own ill-advised order to be followed in a way that is fair to both sides.
