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Why the Trump Census is clearly unconstitutional

Bruce Ackerman is Professor of Law and Political Science at Yale Law School (Sterling) and is the author, most recently, of Revolutionary Constitutions: Charismatic Leadership and the Rule of Law (Harvard Press, 2019).

President Donald Trump has already suffered a scathing defeat when the Supreme Court invalidated his efforts to add a "citizenship question" to the 2020 census. He has now decided to retry, threatening to issue an order directing the Census Bureau to add the question at his inquiry and at the Ministry of Justice to defend his action in the context of ongoing legal proceedings.

If Trump moves forward, he will threaten a secular consensus that leaves Congress with the responsibility for the census. This legal basis has been repeatedly tested and reaffirmed during American history – the last time that another Republican party, threatened with immigration, was considering changing the census process for the first time. To adapt to its political objectives.

History continues below

Article 1 of the Constitution explicitly puts the census in the hands of Congress, not the President. It provides that the first census "shall be conducted within three years of the first meeting of the United States Congress and over the next ten years, as follows: [the House and Senate] by the law. The Constitution also explicitly gave Congress the final say on the redistribution of each state's delegations to the House and the electoral college on the basis of the census.

The authority of Congress was invigorated after the civil war. The Fourteenth Amendment, promulgated in 1868, abolished the 1787 Compromise by considering slaves as 3/5 of a person and gave Congress new market orders. He said that "the representatives will be distributed among the different states according to their respective number, counting the total number of people in each state".

This insistence on people, not citizens, was deliberate. While the Thirteenth Amendment freed the slaves, it did not grant them the right to vote – and Republican congressional leaders did not yet have the votes to give them that right. In addition, central actors such as President Thaddeus Stevens and Senator Charles Sumner were powerful allies of Elizabeth Cady Stanton and the emerging nineteenth-century feminist movement. They insisted on the inclusion of women in the workforce, which would be a first step towards their ultimate goal, female suffrage.

During all this time, the president played no role in the redistribution process. In the first decades of the 19th century, Congress relied on federal court judges to collect census data from states. But in 1840, he created a central office to assist in the redistricting of the decade. This census office, as it was then called, received its Congressional orders and, for its continued existence, has depended on a series of legislative mandates over the next 60 years.

It was only in 1902 that Congress established a census office on a permanent basis, as part of its broader decision to create a new Commerce Department. This complicated matters because the Commerce Department was part of the executive branch and the law did not specify the relationship of the new Secretary of Commerce with Congress in managing the operation of the Census Bureau.

The resulting statutory fog enabled the Congress to place politics above the constitutional law duty and 150 years of constitutional practice. In 1920, the Bureau's new figures were a day of reflection for the Republicans who had just won a landslide victory of Congress over Democratic President Woodrow Wilson in 1918. The Bureau's report revealed that the First World War had generated a rush of Europe's new refugee population lives in America, increasing the population by 15% to 106 million. These immigrants massively settled in the Northeast and Midwest, where the Democratic Party was the ascendant, giving them an overwhelming advantage if Congress redistributed seats in the House and the Electoral College in the next rounds of elections. national.

Faced with the prospect of a political defeat, Republicans refused to commit suicide in elections. For the first and only time in American history, Congress violated the Constitution and continued to use the 1910 census numbers, rather than those of 1920, as the basis for the distribution of seats in the House and House of Commons. electoral college for the next decade.

This brutal subordination of constitutional responsibility to politics paved the way for an even more serious crisis as the decennial count approached in 1929, ultimately leading to a highly visible decision reaffirming the Congress's decisive control over the census. This time, Republican President Herbert Hoover was in the White House and Republicans also commanded both Houses of Congress. Would party leaders once again rush against their opponents by continuing to use the 1910 figures as a base for the national competition for another decade?

To their credit, the answer was no.

On June 9, the Republican Congress passed the 1929 Re-Allocation Act, which legally obligates its successors to fulfill their constitutional obligations. The importance of this act of statehood has never been sufficiently understood. Only four months later, on October 24, the stock market collapsed. If the Republicans had not tied their hands in June, the political temptation to maintain the 1910 membership might well have been irresistible, as the continued distribution of seats on the basis of the population 92 million pre-war residents provided the only hope of countering the Democrats' effort to secure a popular mandate for their New Deal from the 123 million people living in the United States in 1930.

If the Republicans had managed to hold on to power, it would have created a crisis of legitimacy much deeper than the struggle triggered by the 1937 court-stuffing episode, when President Franklin D. Roosevelt threatened to add Supreme Court justices to validate New Deal reforms. Instead, however, the 1929 Act provided that "the census director" was responsible for "the enforcement of this law" and had the explicit responsibility to ensure that all relevant census forms were prepared at the time of the census. later on April 1 of the previous year. ensure the orderly administration of the enumeration.

The law also ordered that "the president must transmit to Congress a statement indicating the total number of persons in each state "at the opening session of the House and Senate," or within one week after ", in order to allow the Congress to fulfill its responsibilities of redistribution of constitutional mandates promptly.

In the last century, many of the specific requirements and procedures imposed in 1929 have been revised, but the basic framework remains intact. In particular, the deadline for the final preparation of the census forms was shifted from April 1 to July 1, and this date was a legal turning point in the ongoing legal battle. Chief Justice John Robert Roberts issued his majority opinion on June 27, four days before the deadline. Although he concluded that the reason the Bureau had included the question of citizenship was implausible and served only as a "pretext" for an improper political decision, he gave the Bureau an opportunity to provide a more convincing justification. before July 1st.

But once the Department of Justice team failed to fill this gap during this brief period, Trump found himself in a radically different situation.. The President could have tried to provide the courts with a more convincing justification in the days remaining before July 1, but after that date, any attempt to do so would go directly against the constitutional power of the Congress of the United States. insist that the count is carried out efficiently and quickly. fashion. He could no longer claim that the census was following the law if he changed the form created for public distribution. He could only affirm, in a series of combative tweets, that he retained the unilateral power to impose the issue of citizenship by decree.

Trump can tweet what he wants, but his lawyers are forced to confront constitutional texts and statutory orders, which represent two centuries of historical experience of the problem of redistribution. It is not surprising that Trump tried to dismiss his entire legal team on Monday morning after confessing to District Judge Jesse M. Furman that he was unable to explain to him the reasons for unilateral presidential action that seemed very plausible. Furman has now rejected Trump's efforts to replace them with a new legal team as "obviously deficient".

Given his track record of enforcing the White House's orders, Attorney General William Barr will no doubt ask the Supreme Court to overturn Furman's decision and give his new, highly politicized team the opportunity to take action. lawyers an opportunity to streamline the latest statement of unilateral authority torn apart by the previous one.

I would like to evaluate his chances of success at zero. As the Chief Justice has already dismissed the Bureau's conduct as an "abuse of discretion", it is impossible to believe that he will maintain the President's direct intervention in a regulatory system. deeply rooted in our constitutional tradition.

Roberts is however legitimately concerned about maintaining the legitimacy of his court in these polarized times. Given that his previous opinion expressed differing views, he might well try to avoid further disarray by persuading his colleagues to join him in a summary judgment, stating that Mr. Furman did not want to be confused. did not need an elaborate opinion.

Whatever his success on this front, Furman's confirmation will force Trump to ask himself a very big question. If he follows up on his threat of executive order, he will not only challenge the constitutional text and two centuries of statutory practice. He will openly challenge the United States Supreme Court.

It is the paradox "big crime or crime" which was the main reason for the dismissal and the quasi-condemnation of Andrew Johnson during the reconstruction, and which hides behind the resignation of Richard Nixon on the occasion of the Watergate scandal.

Is Trump willing to step up his ongoing unilateral campaign to provoke such a heartbreaking constitutional crisis?

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