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Why Trump's census is blatantly constitutional



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

President Donald Trump has already suffered a stinging defeat, as the Supreme Court has disputed its efforts to add a "citizenship" to the 2020 census. Now he has decided to try again and threatens to issue a decree ordering the Census Bureau to add the question to his inquiry and ordered the Ministry of Justice to defend his action in ongoing litigation.

If Trump moves forward, he will threaten a century's consensus that puts congressional responsibility for the census. This legal basis has been repeatedly tested and confirmed by American history ̵

1; the last time another republican party was threatened by immigration, which is considered to change the census process to fit their political ends.

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Article one in the Constitution explicitly set the census in the hands of the congress, not the president. It states that the first census "must take place within three years of the first United States Congress meeting and within each subsequent ten-year period, in such a way as [the House and Senate] is to be directly applicable." The Constitution also explicitly provided Congress with the final expression when it came to republishing each state's delegation to Parliament and the Electoral College based on the census.

The congressional authority was revived after the civil war. The fourteenth amendment adopted in 1868 abolished the 1787 compromise which counted slaves as 3/5 by one person and gave Congress new marching orders. It stated that "representatives are distributed among the different states according to their respective numbers and count the entire number of people in each state."

This insistence on people, not citizens, was conscious. While the thirteenth amendment freed the slaves, it did not give them the right to vote – and the Republican congressional leadership had yet to vote to give them the right. In addition, key players such as Speaker Thaddeus Stevens and Senator Charles Sumner were strong allies of Elizabeth Cady Stanton and the rising feminist movement of the 19th century. They insisted on the inclusion of women in the main census as a first step towards their ultimate goal of female elections.

Throughout this time, the president played absolutely no role in the redistribution process. In the early decades of the 19th century, Congress supported judicial marshals in federal courts to collect census data from states. But in 1840 it created a central office to help it in the decade's renewal. This census, as it was known, took its order from Congress and was dependent on its continued existence on a number of legislative mandates over the next 60 years.

Only in 1902 did Congress establish a census permanently as part of its major decision to set up a new Ministry of Commerce. This created a complication as the Department of Commerce was part of the executive department, and the law did not set out the new trade secretary's relationship with the congress to control the census operation.

The resulting statutory fog allowed Congress to impose the policy of the constitutional text and 150 years of constitutional practice. The Bureau's new census figures served in 1920 as a day of reckoning for Republicans who had just scored a celebratory congressional victory over Democratic President Woodrow Wilson in 1918. The Bureau's report revealed that World War I had generated a tidal wave of European refugees seeking a new life in America, increasing the country's population by 15 percent to 106 million. These immigrants settled overwhelmingly in the Northeast and Midwest, where Democratic Party was on the rise, giving them an overwhelming advantage if Congress re-appointed seats in Parliament and the Election College in the upcoming rounds of national elections.

Faced with the prospect of a political defeat, the Republicans refused to commit suicide. For the first and only time in American history, the Congress violated the Constitution and continued to use the 1910 Census, instead of 1920, as the basis for the distribution of seats in Parliament and the electoral school in the next decade.

This broken subordination of constitutional responsibility for politics set the stage for an even greater crisis as the millennium head count approached in 1929, ultimately leading to a high visibility decision that confirmed Congress's decisive control over the census. This time, Republican President Herbert Hoover was in the White House, and the Republicans were also empowered to both houses in Congress. Will party leaders again cover their opponents by continuing to use the 1910 numbers as the basis for national competition for another decade?

For their great credit, the answer was No.

On June 9, the Republican Congress adopted the 1929 Renewal Law, which imposed on its successors a statutory obligation to fulfill their constitutional obligations. The importance of this act of statemanship has never been appreciated sufficiently. Only four months later the stock market encountered October 24. If the Republicans had not tied their hands in June, the political temptation to continue the 1910s could have proved irresistible. While the pre-war squad population remained 92 million inhabitants, their only hope was to counter the Democrats' efforts to get a popular mandate for their New Deal from the 123 million people living in the United States in 1930.

If the Republicans succeeded in hanging on to power, it would have created a much more profound legitimacy crisis than the Battle precipitated by the 1937 National Assembly, when President Franklin D. Roosevelt threatened to add justice to the Supreme Court to validate his New Deal reforms. However, according to the Law of 1929, "census" was responsible for "enforcing this law" and was explicitly responsible for ensuring that all relevant public records were drawn up by 1 April of the previous year at the latest to ensure orderly administration of head count.

The law also ordered that "the president must submit to the congress a statement showing the whole number of persons in each state" at the opening of Parliament and the Senate "or within a week thereafter," enable Congress to continue its constitutional mandate distribution.

During the last century, many of the specific requirements and procedures made in 1929 have been revised, but the basic framework remains intact. The deadline for final preparation of public information forms has shifted in particular from 1 April to 1 July, and that date has served as a legal turning point in the ongoing legal battle. Chief Justice John Robert Roberts delivered his majority vote on June 27, four days before the deadline. Although he found that the Bureau's justification for involving citizenship was impossible and merely a pretext for an illegal political decision, he gave the Bureau a chance to give a more compelling justification by 1 July.

But when the Justice Department failed to fill this gap in this short period, and Trump was in a radically different situation . The president could have tried to give the courts a more convincing justification for the remaining days before July 1, but after that date any attempt to do so would immediately address the congressional constitution to insist that the census continues in an effective and fast way. He could no longer pretend that the census followed the law if it changed the form it had created for public distribution. He could only claim, in a number of combat tweets, that he retained the unilateral power to impose citizen issues through a decree.

Trump can tweet what he likes, but his lawyers are obliged to confront the constitutional texts and statutory commands that represent two centuries of historical experience with the problem of reapportionment. A little weird when Trump tried to shoot his entire legal team on Monday morning when they confessed to the district judge Jesse M. Furman that they could not give him a justification for unilateral presidential action which seemed to be extremely probable and that Furman has now rejected Trumps efforts to replace them with a new legal team as "overtly deficient".

Based on his track record of observing the White House commands, lawyer William Barr will undoubtedly ask the Supreme Court to turn Furman's decision and give his new high-policing team of lawyers a chance to rationalize Trump's latest predictive claim of one-sided authority.

I would rate his chances of success at zero. Since supreme justice has already rejected 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 system of regulation that has deep roots in our constitutional tradition.

However, Roberts is rightly concerned about maintaining his court's legitimacy in these polarized times. As there were dissent to his previous statement, he may well try to avoid another fate of the disorder by persuading his colleagues to join him in a summary judgment confirming Furman without the need for any deepened opinion.

Whatever his success on this front, Furman's justification will force Trump to pose a very big question. If he follows up with his threatened executive order, he will not only hesitate the constitutional text and two centuries of legal practice. He will be open to the Supreme Court of the United States.

This represents the paradigmatic "high crime or misdemeanor" that served as the main ground for accusation and close conviction of Andrew Johnson during Reconstruction and who has lured the background since Richard Nixon's departure under the Watergate scandal.

Is Trump willing to escalate his ongoing unilateralist campaign to provoke such a rugged constitutional crisis?


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