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How The Trump Administration Could Still Add A Citizenship Question To The Census


And there are still a lot of questions about this question - is this person a citizen of the United States? The Trump administration had planned to include it on the 2020 census, that is until the Supreme Court ruled they couldn't. With time running out to print the census, the administration said they would drop it. Yesterday, President Trump said, not so fast. Rick Hasen is a professor of law and political science at the University of California, Irvine. He's here to help us understand what's going on, basically. Welcome to the program.

RICK HASEN: Great to be with you.

CORNISH: So what do you think? What happened yesterday?

HASEN: So the president's tweet seemed to set off a whole series of events. There are a couple of cases where the census question has been litigated, and in two of those courts, the judges wanted answers as to whether or not, in fact, the government was giving up on putting the citizenship question on the census. And one of those was a telephonic hearing with a judge in Maryland; the other was a written submission to a judge in New York. And in both cases, the Department of Justice indicated that while the door seemed like it was closed before, it's now reopened.

They're exploring their legal options to see if there's still a way to get that citizenship question on the census, despite the fact that the forms are already being printed without the question.

CORNISH: So Chief Justice Roberts wrote the opinion for the majority in the Supreme Court ruling on this. And people are saying that he essentially left some wiggle room there for the Trump administration to come back at this. Can you describe what that was?

HASEN: So he did leave some wiggle room because he said that there are all kinds of good reasons for the government to want to include the citizenship question on the census. But the reason that the government actually gave was a pretext; it was a fake reason. And so this leaves open the possibility of coming back and saying, from the government, here's our new reason. Is this good enough for you, Chief Justice Roberts? And since he's the controlling vote, what he thinks on that question is likely going to be determinative.

CORNISH: But can they come back if, essentially, they were rejected because their previous reasoning was seen as disingenuous?

HASEN: Well - so I think that, legally, there is a way to make an argument that the opinion the court issued last month did not completely close the door. But it's still going to have to convince a number of judges that it is a good enough reason and not yet another pretext.

CORNISH: There's also been talk about the president circumventing all of this by issuing an executive order. Is that realistic? Is that legally viable?

HASEN: Well, the president can issue an executive order and say whatever he wants; the question is whether it would satisfy the courts. Right now there are injunctions, court orders that prevent the printing of the census form with the citizenship question on it. So whether it's in an executive order or in a statement from Secretary Wilbur Ross or it's in some other form, there's going to have to be a good enough reason given for including the question. And if that reason doesn't convince, ultimately, Chief Justice John Roberts, then it's likely not going to be good enough to get the question back on the census form.

CORNISH: As you alluded to, the printing of the census has begun, without the citizenship question. Isn't that a logistical hurdle, a financial hurdle to this going forward?

HASEN: So the Justice Department represented in court that the forms had to start printing on July 1, and they in fact started printing. So what would have to happen if the citizenship question were added is the printing would stop, they'd have to junk all those forms, and they'd be behind. The plaintiffs had argued in some of the cases, well, we could really start printing as late as October in order for it to be in time. It would be yet another reversal by the government if they took the position, yeah, now we agree with the plaintiffs; the printing can happen later.

CORNISH: Rick Hasen is a professor of law and political science at the University of California, Irvine. Thanks for speaking with us.

HASEN: Thank you, and happy July 4. Transcript provided by NPR, Copyright NPR.