The Supreme Court denied President Trump’s desire to put a citizenship question on the census, but they didn’t reject his authority to do so.
They rejected Wilbir Ross’ and Steve Bannon’s argument from two years ago. It appears that Ross and Bannon got too clever and tried to hoodwink the bureaucracy with the census question.
They did a disservice to the President in the process because Trump has the authority and he could have just issued an executive order from day 1.
This is exactly what he is considering right now. Many people think if the President just asserts this authority without Bannon’s and Ross’ spurious reasons, Trump will win in the Supreme Court.
The Axios reported that President Trump is considering an executive order to try to move forward with a citizenship question on the 2020 census, top sources tell Jonathan Swan and me.
“We didn’t come this far just to throw in the towel,” said a senior administration official with direct knowledge of the conversations.
Administration lawyers are exploring various legal options.
A senior legal source said: “The administration is considering the appropriateness of an executive order that would address the constitutional need for the citizenship question to be included in the 2020 census.”
It’s fair to mention that there is considerable skepticism within the administration that an executive order would succeed.
Why this matters: President Trump’s insistence on pushing ahead with the question, potentially without doing the legwork the Supreme Court called for, reflects his expansive view of executive power.
A source familiar with some of the administration’s internal deliberations said: “I think that there’s a good argument to be made that even though the president may lose in litigation at the end of the day, going through that process ultimately makes it clear that it’s the chief justice, and not the Executive Branch, that bears responsibility for that unfortunate outcome.”
“If the president of the United States were to issue an executive order, supported by his full Article II powers, directing that the citizenship question be included in the 2020 census, I believe the Supreme Court would affirm the constitutional power of the president to include the citizenship question in the census.” Former federal judge J. Michael Luttig, who has longtime ties to officials in the administration, told Axios.
How we got here: last week the Supreme Court voted to block a census question that asks: “Is this person a citizen of the United States?”
But it gave the administration an opening to try again, if it could come up with a more persuasive argument about why it was adding the question.