WEBVTT - Trump Explores Citizenship Question

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<v Speaker 1>Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every

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<v Speaker 1>day we bring you insight and analysis into the most

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<v Speaker 1>important legal news of the day. You can find more

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<v Speaker 1>episodes of the Bloomberg Law Podcast on Apple Podcasts, SoundCloud

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<v Speaker 1>and on Bloomberg dot com slash podcasts. Well, it's the

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<v Speaker 1>on again, off again citizenship question on the census. Today.

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<v Speaker 1>President Trump said he may issue an executive order to

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<v Speaker 1>add the question to the census, as the administration is

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<v Speaker 1>considering alternatives. Remember, the Supreme Court put the matter on hold.

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<v Speaker 1>Joining me is Andy Harris Bloomberg News a legal reporter.

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<v Speaker 1>So Andy, even Justice Department lawyers were confused about what

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<v Speaker 1>was happening, and judges in Maryland and New York wants

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<v Speaker 1>some answers. Yeah, it was a little bit of whiplash

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<v Speaker 1>on Wednesday, because on Tuesday, the Justice Department and Commerce

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<v Speaker 1>Secretary Wilbert Ross had basically conceded the point and so

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<v Speaker 1>that they were going forward with printing the census questionnaire

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<v Speaker 1>omitting the citizenship question. That apparently raised the ire of

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<v Speaker 1>the President, who tweeted out early the next day that

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<v Speaker 1>those reports were fake and that they were pressing forward,

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<v Speaker 1>prompting opponents of the question to go screaming back into

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<v Speaker 1>court and saying, wait a minute, what's going on? We

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<v Speaker 1>need an explanation, And the judges said, yeah, us two.

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<v Speaker 1>So there's a deadline in the Maryland Court of two

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<v Speaker 1>pm today for an answer. The judge wants an answer.

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<v Speaker 1>Are they going forward or are they not? Tell us

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<v Speaker 1>that the two scenarios what happens in each case? Well,

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<v Speaker 1>the problem is this. The Supreme Court last month ruled

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<v Speaker 1>that the original pretext or proffer for why they wanted

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<v Speaker 1>to add the citizenship question the first place wasn't true.

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<v Speaker 1>They called it contrived. They said that commerce does have

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<v Speaker 1>the authority to add a question, but they have to

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<v Speaker 1>go through the proper legal processes so that that question

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<v Speaker 1>isn't added arbitrarily. And they said, well, go back and

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<v Speaker 1>do this. Underlying all this is a couple of months

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<v Speaker 1>ago a Republican political strategist, Thomas Hoefeler died and his

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<v Speaker 1>daughter discovered on his computer records that suggested that the

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<v Speaker 1>real reason for adding the citizenship question all along was

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<v Speaker 1>to suppress the response of minorities, forcing a redrawing of

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<v Speaker 1>congressional districts. Now, these rulings blocking the question had already

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<v Speaker 1>been issued by the lower courts, and we're already been

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<v Speaker 1>argued at the Supreme Court when this new evidence came

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<v Speaker 1>to light. So the Maryland judge said, you know what,

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<v Speaker 1>if the question doesn't get struck down, will reopen the

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<v Speaker 1>case to look at this possible pretext of racial discrimination.

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<v Speaker 1>But that seemed to have been mooted by the Supreme

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<v Speaker 1>Court's ruling. Now it's back in play. So to answer

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<v Speaker 1>your question, either the issue is dead, which the Justice

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<v Speaker 1>Department could still say today, or they're going forward, in

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<v Speaker 1>which case Judge Hazel in Maryland is going to reopen

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<v Speaker 1>that discrim nation question. And what about Judge Furman? Do

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<v Speaker 1>we know yet Judge Furman in New York what he's doing.

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<v Speaker 1>He's like like Judge Hazel in Greenbelt, Maryland, he too

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<v Speaker 1>is waiting for an answer. But it's less clear what

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<v Speaker 1>the next steps will be. Well, now that the President

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<v Speaker 1>has said, and when we heard this from other people

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<v Speaker 1>in the wise, well maybe I'll issue an executive order

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<v Speaker 1>and then I don't know, consider an addendum. However that

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<v Speaker 1>would work. I don't know, But an executive order wouldn't

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<v Speaker 1>that flout the Supreme Court's opinion and the injunction that

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<v Speaker 1>the New York judge at least put in place. That's

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<v Speaker 1>a very good point, June. The problem with the executive

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<v Speaker 1>orders again, you need not just be able to say

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<v Speaker 1>because I said so, But there has to be a

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<v Speaker 1>defensible legal reason, even coming from the President of the

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<v Speaker 1>United States, one supposes. Uh. So, yeah, obviously raise a

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<v Speaker 1>question with the court as to whether or not this

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<v Speaker 1>newly proffered reason is any less pretextual than the last one.

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<v Speaker 1>And it seems that since the commiss Department said that

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<v Speaker 1>they were abandoning the question, that they probably didn't have

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<v Speaker 1>an additional reason that they could support with evidence in

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<v Speaker 1>the case. I mean he he had said that, Um,

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<v Speaker 1>it was because they wanted to enforce the Voting Rights Act,

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<v Speaker 1>but the evidence was contrary to that. So now they

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<v Speaker 1>have to come up with an explanation that the evidence matches. Yeah,

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<v Speaker 1>that's an issue. Uh. The Justice Bartment lawyers told Judge

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<v Speaker 1>Hazel that they would come up with quote a new rationale,

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<v Speaker 1>and the new rationale suggests bias definition that they didn't

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<v Speaker 1>have it before. So they need to come up with

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<v Speaker 1>a reason, and they need to come up with a

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<v Speaker 1>legally defensible reason at the very least of the Supreme Court,

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<v Speaker 1>not to the lower court judges. So let's talk about

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<v Speaker 1>timing here, because I've heard different things about timing. First

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<v Speaker 1>of all, they said that it had to the answer

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<v Speaker 1>had to be in They had to do it by

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<v Speaker 1>the beginning of this month. So where does that leave them.

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<v Speaker 1>There have been shifting reports on when they need to

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<v Speaker 1>get this questionnaire printed and distributed. The under taking of

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<v Speaker 1>the census is a big project. Obviously, it happens once

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<v Speaker 1>every ten years. They need to hire people to go

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<v Speaker 1>door door to door to question people that didn't respond

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<v Speaker 1>to the initial canvas. So this takes a lot of

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<v Speaker 1>pre planning. And the initial reports were that they had

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<v Speaker 1>to go to press with a questionnaire about June thirty.

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<v Speaker 1>Apparently that might have been a softer date than believed

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<v Speaker 1>um these Commerce secretary and when he waved the right

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<v Speaker 1>flag earlier this week so that they were proceeding with

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<v Speaker 1>printing the question So that doesn't necessarily say that they're

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<v Speaker 1>actually rolling the presses, but that they're they're moving in

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<v Speaker 1>that direction. So the question is how late can they

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<v Speaker 1>do this and still do all the other things that

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<v Speaker 1>they need to do to get the senses done within

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<v Speaker 1>their constitutionally mandated and statually statutorily mandated time frame. Do

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<v Speaker 1>they have to do? They have to buy law started

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<v Speaker 1>on April one. That's my understanding of the law. I'm

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<v Speaker 1>not an expert in that realm that that's what the state. Well,

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<v Speaker 1>no one's an expert in this, because it's never come

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<v Speaker 1>up before to this to this extent, to see see

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<v Speaker 1>what's happening, and just go back and explain for a

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<v Speaker 1>moment what the fears are of the people who are

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<v Speaker 1>opposing this question, the a c l U and the

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<v Speaker 1>New York AG, other civil rights organizations, what their fears

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<v Speaker 1>are if this question is on the census, the fear

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<v Speaker 1>is that households where people that aren't citizens reside may

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<v Speaker 1>be deterred from answering the question or answering it honestly,

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<v Speaker 1>and that could result in an undercount. And the reason

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<v Speaker 1>why that's important is undercounts on the census lead to

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<v Speaker 1>UH redrawing up congressional lines, lead to reallocation of federal

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<v Speaker 1>resources for public programs, and it could if you depress

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<v Speaker 1>minority UH turn out en off result in shifting of

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<v Speaker 1>congressional lines in a way that actually alters the makeup

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<v Speaker 1>of Congress and could enhance the Republican Party's hold on

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<v Speaker 1>the House. And this maybe, uh, the Supreme Court's opinion

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<v Speaker 1>seems to have broken. Uh. Trump's love affair with the

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<v Speaker 1>Chief Justice John Roberts. He was so complimentary of different things,

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<v Speaker 1>but in comments on Friday, he said he respects Roberts,

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<v Speaker 1>but the Chief Justice didn't like the administration's arguments, and

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<v Speaker 1>essentially he said come back. He didn't really say come back,

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<v Speaker 1>please come back. He said, well you can't come back. Well,

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<v Speaker 1>we shall see Andy as this unfolds. I know you're

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<v Speaker 1>waiting to see what happens by two pm, and we

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<v Speaker 1>will have that information as soon as you get it.

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<v Speaker 1>Thanks so much for joining us. Okay, sure, that's Andrew Harris,

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<v Speaker 1>Bloomberg News Legal reporter. Thanks for listening to the Bloomberg

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<v Speaker 1>Law Podcast. You can subscribe and listen to the show

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<v Speaker 1>on Apple Podcasts, SoundCloud, and on Bloomberg dot COM's Lash podcast.

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<v Speaker 1>I'm June Brosso. This is Bloomberg m HM.