1 00:00:03,480 --> 00:00:07,560 Speaker 1: Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every 2 00:00:07,640 --> 00:00:10,440 Speaker 1: day we bring you insight and analysis into the most 3 00:00:10,480 --> 00:00:13,399 Speaker 1: important legal news of the day. You can find more 4 00:00:13,480 --> 00:00:18,040 Speaker 1: episodes of the Bloomberg Law Podcast on Apple Podcasts, SoundCloud 5 00:00:18,320 --> 00:00:22,279 Speaker 1: and on Bloomberg dot com slash podcasts. Well, it's the 6 00:00:22,480 --> 00:00:26,960 Speaker 1: on again, off again citizenship question on the census. Today. 7 00:00:27,040 --> 00:00:29,880 Speaker 1: President Trump said he may issue an executive order to 8 00:00:29,920 --> 00:00:33,120 Speaker 1: add the question to the census, as the administration is 9 00:00:33,159 --> 00:00:37,640 Speaker 1: considering alternatives. Remember, the Supreme Court put the matter on hold. 10 00:00:38,440 --> 00:00:41,240 Speaker 1: Joining me is Andy Harris Bloomberg News a legal reporter. 11 00:00:41,400 --> 00:00:45,000 Speaker 1: So Andy, even Justice Department lawyers were confused about what 12 00:00:45,080 --> 00:00:48,880 Speaker 1: was happening, and judges in Maryland and New York wants 13 00:00:48,880 --> 00:00:51,720 Speaker 1: some answers. Yeah, it was a little bit of whiplash 14 00:00:51,840 --> 00:00:56,520 Speaker 1: on Wednesday, because on Tuesday, the Justice Department and Commerce 15 00:00:56,560 --> 00:00:59,840 Speaker 1: Secretary Wilbert Ross had basically conceded the point and so 16 00:01:00,040 --> 00:01:03,960 Speaker 1: that they were going forward with printing the census questionnaire 17 00:01:03,960 --> 00:01:07,440 Speaker 1: omitting the citizenship question. That apparently raised the ire of 18 00:01:07,480 --> 00:01:09,679 Speaker 1: the President, who tweeted out early the next day that 19 00:01:09,720 --> 00:01:12,679 Speaker 1: those reports were fake and that they were pressing forward, 20 00:01:12,720 --> 00:01:15,760 Speaker 1: prompting opponents of the question to go screaming back into 21 00:01:15,760 --> 00:01:18,039 Speaker 1: court and saying, wait a minute, what's going on? We 22 00:01:18,200 --> 00:01:21,160 Speaker 1: need an explanation, And the judges said, yeah, us two. 23 00:01:21,920 --> 00:01:24,920 Speaker 1: So there's a deadline in the Maryland Court of two 24 00:01:24,920 --> 00:01:28,240 Speaker 1: pm today for an answer. The judge wants an answer. 25 00:01:28,360 --> 00:01:31,520 Speaker 1: Are they going forward or are they not? Tell us 26 00:01:31,520 --> 00:01:34,480 Speaker 1: that the two scenarios what happens in each case? Well, 27 00:01:34,520 --> 00:01:40,039 Speaker 1: the problem is this. The Supreme Court last month ruled 28 00:01:40,200 --> 00:01:44,720 Speaker 1: that the original pretext or proffer for why they wanted 29 00:01:44,760 --> 00:01:49,520 Speaker 1: to add the citizenship question the first place wasn't true. 30 00:01:49,920 --> 00:01:53,160 Speaker 1: They called it contrived. They said that commerce does have 31 00:01:53,280 --> 00:01:55,720 Speaker 1: the authority to add a question, but they have to 32 00:01:55,760 --> 00:01:58,800 Speaker 1: go through the proper legal processes so that that question 33 00:01:58,920 --> 00:02:03,200 Speaker 1: isn't added arbitrarily. And they said, well, go back and 34 00:02:03,240 --> 00:02:06,880 Speaker 1: do this. Underlying all this is a couple of months 35 00:02:06,920 --> 00:02:10,800 Speaker 1: ago a Republican political strategist, Thomas Hoefeler died and his 36 00:02:10,880 --> 00:02:14,880 Speaker 1: daughter discovered on his computer records that suggested that the 37 00:02:14,919 --> 00:02:18,440 Speaker 1: real reason for adding the citizenship question all along was 38 00:02:18,520 --> 00:02:21,840 Speaker 1: to suppress the response of minorities, forcing a redrawing of 39 00:02:21,880 --> 00:02:26,760 Speaker 1: congressional districts. Now, these rulings blocking the question had already 40 00:02:26,760 --> 00:02:29,399 Speaker 1: been issued by the lower courts, and we're already been 41 00:02:29,480 --> 00:02:32,720 Speaker 1: argued at the Supreme Court when this new evidence came 42 00:02:32,720 --> 00:02:36,840 Speaker 1: to light. So the Maryland judge said, you know what, 43 00:02:38,320 --> 00:02:41,160 Speaker 1: if the question doesn't get struck down, will reopen the 44 00:02:41,200 --> 00:02:44,760 Speaker 1: case to look at this possible pretext of racial discrimination. 45 00:02:45,320 --> 00:02:47,240 Speaker 1: But that seemed to have been mooted by the Supreme 46 00:02:47,280 --> 00:02:49,960 Speaker 1: Court's ruling. Now it's back in play. So to answer 47 00:02:49,960 --> 00:02:53,799 Speaker 1: your question, either the issue is dead, which the Justice 48 00:02:53,800 --> 00:02:56,600 Speaker 1: Department could still say today, or they're going forward, in 49 00:02:56,600 --> 00:02:59,400 Speaker 1: which case Judge Hazel in Maryland is going to reopen 50 00:02:59,440 --> 00:03:02,680 Speaker 1: that discrim nation question. And what about Judge Furman? Do 51 00:03:02,720 --> 00:03:06,200 Speaker 1: we know yet Judge Furman in New York what he's doing. 52 00:03:06,760 --> 00:03:10,639 Speaker 1: He's like like Judge Hazel in Greenbelt, Maryland, he too 53 00:03:11,000 --> 00:03:13,040 Speaker 1: is waiting for an answer. But it's less clear what 54 00:03:13,160 --> 00:03:16,600 Speaker 1: the next steps will be. Well, now that the President 55 00:03:16,680 --> 00:03:18,560 Speaker 1: has said, and when we heard this from other people 56 00:03:18,600 --> 00:03:21,720 Speaker 1: in the wise, well maybe I'll issue an executive order 57 00:03:22,240 --> 00:03:25,000 Speaker 1: and then I don't know, consider an addendum. However that 58 00:03:25,040 --> 00:03:28,680 Speaker 1: would work. I don't know, But an executive order wouldn't 59 00:03:28,720 --> 00:03:33,079 Speaker 1: that flout the Supreme Court's opinion and the injunction that 60 00:03:33,360 --> 00:03:35,960 Speaker 1: the New York judge at least put in place. That's 61 00:03:35,960 --> 00:03:38,760 Speaker 1: a very good point, June. The problem with the executive 62 00:03:38,840 --> 00:03:43,680 Speaker 1: orders again, you need not just be able to say 63 00:03:43,760 --> 00:03:46,040 Speaker 1: because I said so, But there has to be a 64 00:03:46,120 --> 00:03:50,520 Speaker 1: defensible legal reason, even coming from the President of the 65 00:03:50,560 --> 00:03:55,280 Speaker 1: United States, one supposes. Uh. So, yeah, obviously raise a 66 00:03:55,360 --> 00:03:57,040 Speaker 1: question with the court as to whether or not this 67 00:03:57,160 --> 00:04:01,440 Speaker 1: newly proffered reason is any less pretextual than the last one. 68 00:04:02,560 --> 00:04:07,640 Speaker 1: And it seems that since the commiss Department said that 69 00:04:07,680 --> 00:04:11,200 Speaker 1: they were abandoning the question, that they probably didn't have 70 00:04:11,360 --> 00:04:15,920 Speaker 1: an additional reason that they could support with evidence in 71 00:04:15,960 --> 00:04:19,520 Speaker 1: the case. I mean he he had said that, Um, 72 00:04:19,560 --> 00:04:22,440 Speaker 1: it was because they wanted to enforce the Voting Rights Act, 73 00:04:22,880 --> 00:04:26,160 Speaker 1: but the evidence was contrary to that. So now they 74 00:04:26,200 --> 00:04:30,719 Speaker 1: have to come up with an explanation that the evidence matches. Yeah, 75 00:04:31,040 --> 00:04:34,640 Speaker 1: that's an issue. Uh. The Justice Bartment lawyers told Judge 76 00:04:34,640 --> 00:04:37,080 Speaker 1: Hazel that they would come up with quote a new rationale, 77 00:04:37,680 --> 00:04:40,640 Speaker 1: and the new rationale suggests bias definition that they didn't 78 00:04:40,680 --> 00:04:43,919 Speaker 1: have it before. So they need to come up with 79 00:04:43,960 --> 00:04:45,560 Speaker 1: a reason, and they need to come up with a 80 00:04:45,680 --> 00:04:49,440 Speaker 1: legally defensible reason at the very least of the Supreme Court, 81 00:04:49,560 --> 00:04:52,080 Speaker 1: not to the lower court judges. So let's talk about 82 00:04:52,120 --> 00:04:55,240 Speaker 1: timing here, because I've heard different things about timing. First 83 00:04:55,240 --> 00:04:57,080 Speaker 1: of all, they said that it had to the answer 84 00:04:57,200 --> 00:04:59,440 Speaker 1: had to be in They had to do it by 85 00:04:59,480 --> 00:05:03,560 Speaker 1: the beginning of this month. So where does that leave them. 86 00:05:03,600 --> 00:05:06,520 Speaker 1: There have been shifting reports on when they need to 87 00:05:06,560 --> 00:05:12,359 Speaker 1: get this questionnaire printed and distributed. The under taking of 88 00:05:12,360 --> 00:05:15,479 Speaker 1: the census is a big project. Obviously, it happens once 89 00:05:15,520 --> 00:05:17,320 Speaker 1: every ten years. They need to hire people to go 90 00:05:17,440 --> 00:05:20,600 Speaker 1: door door to door to question people that didn't respond 91 00:05:20,640 --> 00:05:24,159 Speaker 1: to the initial canvas. So this takes a lot of 92 00:05:24,160 --> 00:05:27,160 Speaker 1: pre planning. And the initial reports were that they had 93 00:05:27,160 --> 00:05:29,200 Speaker 1: to go to press with a questionnaire about June thirty. 94 00:05:29,240 --> 00:05:32,120 Speaker 1: Apparently that might have been a softer date than believed 95 00:05:32,839 --> 00:05:35,240 Speaker 1: um these Commerce secretary and when he waved the right 96 00:05:35,279 --> 00:05:38,279 Speaker 1: flag earlier this week so that they were proceeding with 97 00:05:38,400 --> 00:05:42,920 Speaker 1: printing the question So that doesn't necessarily say that they're 98 00:05:42,920 --> 00:05:46,120 Speaker 1: actually rolling the presses, but that they're they're moving in 99 00:05:46,160 --> 00:05:50,160 Speaker 1: that direction. So the question is how late can they 100 00:05:50,200 --> 00:05:52,240 Speaker 1: do this and still do all the other things that 101 00:05:52,240 --> 00:05:54,640 Speaker 1: they need to do to get the senses done within 102 00:05:54,720 --> 00:06:00,120 Speaker 1: their constitutionally mandated and statually statutorily mandated time frame. Do 103 00:06:00,200 --> 00:06:02,920 Speaker 1: they have to do? They have to buy law started 104 00:06:02,960 --> 00:06:06,840 Speaker 1: on April one. That's my understanding of the law. I'm 105 00:06:06,839 --> 00:06:09,920 Speaker 1: not an expert in that realm that that's what the state. Well, 106 00:06:09,920 --> 00:06:11,960 Speaker 1: no one's an expert in this, because it's never come 107 00:06:12,040 --> 00:06:14,400 Speaker 1: up before to this to this extent, to see see 108 00:06:14,440 --> 00:06:17,080 Speaker 1: what's happening, and just go back and explain for a 109 00:06:17,120 --> 00:06:21,040 Speaker 1: moment what the fears are of the people who are 110 00:06:21,040 --> 00:06:25,039 Speaker 1: opposing this question, the a c l U and the 111 00:06:25,080 --> 00:06:28,600 Speaker 1: New York AG, other civil rights organizations, what their fears 112 00:06:28,640 --> 00:06:32,679 Speaker 1: are if this question is on the census, the fear 113 00:06:32,760 --> 00:06:37,000 Speaker 1: is that households where people that aren't citizens reside may 114 00:06:37,200 --> 00:06:41,279 Speaker 1: be deterred from answering the question or answering it honestly, 115 00:06:41,960 --> 00:06:44,280 Speaker 1: and that could result in an undercount. And the reason 116 00:06:44,279 --> 00:06:47,520 Speaker 1: why that's important is undercounts on the census lead to 117 00:06:48,240 --> 00:06:52,400 Speaker 1: UH redrawing up congressional lines, lead to reallocation of federal 118 00:06:52,480 --> 00:06:57,600 Speaker 1: resources for public programs, and it could if you depress 119 00:06:57,839 --> 00:07:02,479 Speaker 1: minority UH turn out en off result in shifting of 120 00:07:02,560 --> 00:07:05,719 Speaker 1: congressional lines in a way that actually alters the makeup 121 00:07:05,720 --> 00:07:10,840 Speaker 1: of Congress and could enhance the Republican Party's hold on 122 00:07:10,880 --> 00:07:15,320 Speaker 1: the House. And this maybe, uh, the Supreme Court's opinion 123 00:07:15,360 --> 00:07:18,680 Speaker 1: seems to have broken. Uh. Trump's love affair with the 124 00:07:18,840 --> 00:07:22,120 Speaker 1: Chief Justice John Roberts. He was so complimentary of different things, 125 00:07:22,160 --> 00:07:26,040 Speaker 1: but in comments on Friday, he said he respects Roberts, 126 00:07:26,040 --> 00:07:29,360 Speaker 1: but the Chief Justice didn't like the administration's arguments, and 127 00:07:29,480 --> 00:07:32,720 Speaker 1: essentially he said come back. He didn't really say come back, 128 00:07:33,280 --> 00:07:36,760 Speaker 1: please come back. He said, well you can't come back. Well, 129 00:07:36,840 --> 00:07:39,400 Speaker 1: we shall see Andy as this unfolds. I know you're 130 00:07:39,440 --> 00:07:42,160 Speaker 1: waiting to see what happens by two pm, and we 131 00:07:42,200 --> 00:07:45,280 Speaker 1: will have that information as soon as you get it. 132 00:07:45,320 --> 00:07:48,720 Speaker 1: Thanks so much for joining us. Okay, sure, that's Andrew Harris, 133 00:07:48,720 --> 00:07:52,960 Speaker 1: Bloomberg News Legal reporter. Thanks for listening to the Bloomberg 134 00:07:53,040 --> 00:07:56,119 Speaker 1: Law Podcast. You can subscribe and listen to the show 135 00:07:56,160 --> 00:08:00,880 Speaker 1: on Apple Podcasts, SoundCloud, and on Bloomberg dot COM's Lash podcast. 136 00:08:01,240 --> 00:08:09,920 Speaker 1: I'm June Brosso. This is Bloomberg m HM.