Speaker 1: Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every
Speaker 1: day we bring you insight and analysis into the most
Speaker 1: important legal news of the day. You can find more
Speaker 1: episodes of the Bloomberg Law Podcast on Apple Podcasts, SoundCloud
Speaker 1: and on Bloomberg dot com slash podcasts. Well, it's the
Speaker 1: on again, off again citizenship question on the census. Today.
Speaker 1: President Trump said he may issue an executive order to
Speaker 1: add the question to the census, as the administration is
Speaker 1: considering alternatives. Remember, the Supreme Court put the matter on hold.
Speaker 1: Joining me is Andy Harris Bloomberg News a legal reporter.
Speaker 1: So Andy, even Justice Department lawyers were confused about what
Speaker 1: was happening, and judges in Maryland and New York wants
Speaker 1: some answers. Yeah, it was a little bit of whiplash
Speaker 1: on Wednesday, because on Tuesday, the Justice Department and Commerce
Speaker 1: Secretary Wilbert Ross had basically conceded the point and so
Speaker 1: that they were going forward with printing the census questionnaire
Speaker 1: omitting the citizenship question. That apparently raised the ire of
Speaker 1: the President, who tweeted out early the next day that
Speaker 1: those reports were fake and that they were pressing forward,
Speaker 1: prompting opponents of the question to go screaming back into
Speaker 1: court and saying, wait a minute, what's going on? We
Speaker 1: need an explanation, And the judges said, yeah, us two.
Speaker 1: So there's a deadline in the Maryland Court of two
Speaker 1: pm today for an answer. The judge wants an answer.
Speaker 1: Are they going forward or are they not? Tell us
Speaker 1: that the two scenarios what happens in each case? Well,
Speaker 1: the problem is this. The Supreme Court last month ruled
Speaker 1: that the original pretext or proffer for why they wanted
Speaker 1: to add the citizenship question the first place wasn't true.
Speaker 1: They called it contrived. They said that commerce does have
Speaker 1: the authority to add a question, but they have to
Speaker 1: go through the proper legal processes so that that question
Speaker 1: isn't added arbitrarily. And they said, well, go back and
Speaker 1: do this. Underlying all this is a couple of months
Speaker 1: ago a Republican political strategist, Thomas Hoefeler died and his
Speaker 1: daughter discovered on his computer records that suggested that the
Speaker 1: real reason for adding the citizenship question all along was
Speaker 1: to suppress the response of minorities, forcing a redrawing of
Speaker 1: congressional districts. Now, these rulings blocking the question had already
Speaker 1: been issued by the lower courts, and we're already been
Speaker 1: argued at the Supreme Court when this new evidence came
Speaker 1: to light. So the Maryland judge said, you know what,
Speaker 1: if the question doesn't get struck down, will reopen the
Speaker 1: case to look at this possible pretext of racial discrimination.
Speaker 1: But that seemed to have been mooted by the Supreme
Speaker 1: Court's ruling. Now it's back in play. So to answer
Speaker 1: your question, either the issue is dead, which the Justice
Speaker 1: Department could still say today, or they're going forward, in
Speaker 1: which case Judge Hazel in Maryland is going to reopen
Speaker 1: that discrim nation question. And what about Judge Furman? Do
Speaker 1: we know yet Judge Furman in New York what he's doing.
Speaker 1: He's like like Judge Hazel in Greenbelt, Maryland, he too
Speaker 1: is waiting for an answer. But it's less clear what
Speaker 1: the next steps will be. Well, now that the President
Speaker 1: has said, and when we heard this from other people
Speaker 1: in the wise, well maybe I'll issue an executive order
Speaker 1: and then I don't know, consider an addendum. However that
Speaker 1: would work. I don't know, But an executive order wouldn't
Speaker 1: that flout the Supreme Court's opinion and the injunction that
Speaker 1: the New York judge at least put in place. That's
Speaker 1: a very good point, June. The problem with the executive
Speaker 1: orders again, you need not just be able to say
Speaker 1: because I said so, But there has to be a
Speaker 1: defensible legal reason, even coming from the President of the
Speaker 1: United States, one supposes. Uh. So, yeah, obviously raise a
Speaker 1: question with the court as to whether or not this
Speaker 1: newly proffered reason is any less pretextual than the last one.
Speaker 1: And it seems that since the commiss Department said that
Speaker 1: they were abandoning the question, that they probably didn't have
Speaker 1: an additional reason that they could support with evidence in
Speaker 1: the case. I mean he he had said that, Um,
Speaker 1: it was because they wanted to enforce the Voting Rights Act,
Speaker 1: but the evidence was contrary to that. So now they
Speaker 1: have to come up with an explanation that the evidence matches. Yeah,
Speaker 1: that's an issue. Uh. The Justice Bartment lawyers told Judge
Speaker 1: Hazel that they would come up with quote a new rationale,
Speaker 1: and the new rationale suggests bias definition that they didn't
Speaker 1: have it before. So they need to come up with
Speaker 1: a reason, and they need to come up with a
Speaker 1: legally defensible reason at the very least of the Supreme Court,
Speaker 1: not to the lower court judges. So let's talk about
Speaker 1: timing here, because I've heard different things about timing. First
Speaker 1: of all, they said that it had to the answer
Speaker 1: had to be in They had to do it by
Speaker 1: the beginning of this month. So where does that leave them.
Speaker 1: There have been shifting reports on when they need to
Speaker 1: get this questionnaire printed and distributed. The under taking of
Speaker 1: the census is a big project. Obviously, it happens once
Speaker 1: every ten years. They need to hire people to go
Speaker 1: door door to door to question people that didn't respond
Speaker 1: to the initial canvas. So this takes a lot of
Speaker 1: pre planning. And the initial reports were that they had
Speaker 1: to go to press with a questionnaire about June thirty.
Speaker 1: Apparently that might have been a softer date than believed
Speaker 1: um these Commerce secretary and when he waved the right
Speaker 1: flag earlier this week so that they were proceeding with
Speaker 1: printing the question So that doesn't necessarily say that they're
Speaker 1: actually rolling the presses, but that they're they're moving in
Speaker 1: that direction. So the question is how late can they
Speaker 1: do this and still do all the other things that
Speaker 1: they need to do to get the senses done within
Speaker 1: their constitutionally mandated and statually statutorily mandated time frame. Do
Speaker 1: they have to do? They have to buy law started
Speaker 1: on April one. That's my understanding of the law. I'm
Speaker 1: not an expert in that realm that that's what the state. Well,
Speaker 1: no one's an expert in this, because it's never come
Speaker 1: up before to this to this extent, to see see
Speaker 1: what's happening, and just go back and explain for a
Speaker 1: moment what the fears are of the people who are
Speaker 1: opposing this question, the a c l U and the
Speaker 1: New York AG, other civil rights organizations, what their fears
Speaker 1: are if this question is on the census, the fear
Speaker 1: is that households where people that aren't citizens reside may
Speaker 1: be deterred from answering the question or answering it honestly,
Speaker 1: and that could result in an undercount. And the reason
Speaker 1: why that's important is undercounts on the census lead to
Speaker 1: UH redrawing up congressional lines, lead to reallocation of federal
Speaker 1: resources for public programs, and it could if you depress
Speaker 1: minority UH turn out en off result in shifting of
Speaker 1: congressional lines in a way that actually alters the makeup
Speaker 1: of Congress and could enhance the Republican Party's hold on
Speaker 1: the House. And this maybe, uh, the Supreme Court's opinion
Speaker 1: seems to have broken. Uh. Trump's love affair with the
Speaker 1: Chief Justice John Roberts. He was so complimentary of different things,
Speaker 1: but in comments on Friday, he said he respects Roberts,
Speaker 1: but the Chief Justice didn't like the administration's arguments, and
Speaker 1: essentially he said come back. He didn't really say come back,
Speaker 1: please come back. He said, well you can't come back. Well,
Speaker 1: we shall see Andy as this unfolds. I know you're
Speaker 1: waiting to see what happens by two pm, and we
Speaker 1: will have that information as soon as you get it.
Speaker 1: Thanks so much for joining us. Okay, sure, that's Andrew Harris,
Speaker 1: Bloomberg News Legal reporter. Thanks for listening to the Bloomberg
Speaker 1: Law Podcast. You can subscribe and listen to the show
Speaker 1: on Apple Podcasts, SoundCloud, and on Bloomberg dot COM's Lash podcast.
Speaker 1: I'm June Brosso. This is Bloomberg m HM.