By Robert A. Vella
Under Article I Section 2 of the U.S. Constitution, the enumeration (i.e. counting) of the entire population is mandated for the apportionment of seats in the House of Representatives:
Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons…
This is the basis for federal law governing the U.S. Census which must count all U.S. residents regardless of their citizenship status. In recent decades, as the Republican Party has become increasingly antithetical towards ethnic and racial inclusion, the GOP has explored various schemes to maintain its political power (e.g. gerrymandering) despite its general decline in popular support over the last two decades. It explains Republicans’ obsession with packing the U.S. Supreme Court with conservative ideologues and outright partisan hacks. Since SCOTUS is the final arbiter in partisan disputes, they see the nation’s top court as the ultimate mechanism to secure political power for the GOP. And, the Supreme Court is now the focal point of an intense partisan battle over the upcoming U.S Census.
Ever since the Trump administration moved last year to add a citizenship question to the 2020 Census, questions have been asked about the true motivation. The stated reason is that it is needed to enforce the Voting Rights Act, but that has never been a huge point of emphasis for the Republican Party. Indeed, GOP officials have worked to dismantle the VRA in recent years.
And as we’ve found out over the last few months, there are reasons to doubt those initial explanations. Exactly where the idea to add the question came from has been obscured, including apparently by Commerce Secretary Wilbur Ross, and now evidence exists that its earliest proponents may have had other, very political motivations.
What adding a citizenship question would potentially do for Republicans is twofold: 1) It could dissuade undocumented immigrants from responding (for fear of disclosing their status to the government), which would dilute their representation and transfer it to areas that are more likely to be Republican-leaning. And 2) It would give Republicans a potential game-changing tool to rejigger maps in the future. The GOP would very much like to draw maps according to citizen voting-age population, rather than total population, because that benefits more rural areas. That’s questionable from a constitutional standpoint, but without a citizenship question to give it the data it would need, Republicans can’t even really attempt it.
Which is where the story starts getting interesting. Two weeks ago, we learned that the daughter of a recently deceased Republican redistricting guru, Thomas Hofeller, had been sorting through his files and discovered evidence that he was more involved in this process than we believed. That’s significant, because this same consultant had also conducted a 2015 study showing the political benefit Republicans could glean from drawing districts according to citizen voting-age population.
There are other reasons to be suspicious. Ross, whose department oversees the census, testified in March 2018 that the Justice Department “initiated the request for inclusion of the citizenship question.” Emails released later, though, showed that he himself had pushed for its inclusion as early as May 2017 — seven months before the Justice Department’s formal request. And Ross, in that May 2017 email, referred to “my months old request that we include the citizenship question.” The Washington Post’s Fact Checker gave Ross four Pinocchios . . . for his sworn testimony.
Despite Chief Justice John Roberts’ desire to preserve the image of impartiality, his conservative majority on the Supreme Court is expected to approve the addition of the citizenship question to the census. Such a partisan ruling would be widely perceived as an affront to the Constitution especially considering that numerous studies indicate that the question would result in a census undercount. Opponents of the question, which include the ACLU and other non-partisan organizations, have argued that Republican motives behind the question must be considered by the court. I suspect the conservative majority will conveniently ignore that argument which would be incredibly hypocritical because the judicial system has continually stressed the importance of motive in determining criminal cases such as President Trump’s collusion with Russia and obstructions of justice as documented in the Mueller report. If the court would demand the definitive establishment of motive in conspiracy and obstruction cases, as is evident in ordinary murder cases, how can it ignore motive in a profound and consequential constitutional case regarding the census?
All this is crucial to understanding the partisan battle between House Democrats and the Trump administration over the census question. Democrats have issued subpoenas for testimony and documentation to publicly disclose the true intent behind the question, Trump has responded with declarations of “executive privilege” as an expression of noncompliance, and Dems have countered with contempt of Congress votes and other moves. The Democratic strategy here targets the conservative majority on the Supreme Court even more than it targets Trump officials. If the court does approve the question, Democrats want Roberts to pay a heavy political price for it.
Executive privilege is not explicitly mentioned anywhere in the Constitution, the foundation of U.S. law. But the Supreme Court has said that it is “fundamental to the operation of government and inextricably rooted in the separation of powers under the Constitution.” This separation of powers involves assigning different authority to the executive, legislative and judicial branches of the federal government.
The term executive privilege was not used until the 1950s. The doctrine’s contours were unclear until a 1974 Supreme Court ruling. In the case U.S. v. Nixon, President Richard Nixon was ordered to deliver tapes and other subpoenaed materials to a federal judge for review. The justices ruled 9-0 that a president’s right to privacy in his communications must be balanced against the authority of Congress to investigate and oversee the executive branch.
The U.S. v. Nixon ruling is also widely understood to mean that executive privilege cannot be used to cover up wrongdoing. That view was endorsed by current U.S. Attorney General William Barr during his Senate confirmation hearing.
President Donald Trump may not alert the FBI if foreign governments offered damaging information against his 2020 rivals during the upcoming presidential race, he said, despite the deluge of investigations stemming from his campaign’s interactions with Russians during the 2016 campaign.
Asked by ABC News Chief Anchor George Stephanopoulos in the Oval Office on Wednesday whether his campaign would accept such information from foreigners — such as China or Russia — or hand it over the FBI, Trump said, “I think maybe you do both.”
“I think you might want to listen, there isn’t anything wrong with listening,” Trump continued. “If somebody called from a country, Norway, [and said] ‘we have information on your opponent’ — oh, I think I’d want to hear it.”
Lawyer George Conway along with law professor Neal Katyal penned an op-ed published in the Washington Post Wednesday calling for impeachment proceedings against President Trump to begin.
Katyal and Conway, the husband of White House counselor Kellyanne Conway and a frequent critic of Trump on Twitter, say Trump’s court filing arguing he cannot be investigated by Congress is the most recent indicator that lawmakers should begin impeachment proceedings.
Trump “filed a brief in the nation’s second-most-important court that takes the position that Congress cannot investigate the president, except possibly in impeachment proceedings. It’s a spectacularly anti-constitutional brief, and anyone who harbors such attitudes toward our Constitution’s architecture is not fit for office,” the two men wrote.
In other news:
The House Armed Services Committee early Thursday signed off on creating a new military branch dedicated to space.
The committee approved by voice vote an amendment to create the military service in its version of the National Defense Authorization Act (NDAA).
Under the amendment, Space Corps would be an independent military branch within the Department of the Air Force in a structure similar to how the Marine Corps is within the Department of the Navy.
When federal agents raided the Southern California home of US Customs and Border Protection supervisor Wei “George” Xu in February, they seized an arsenal of more than 250 weapons, including nearly three dozen illegal machine guns, according to court records.
Xu, 56, was arrested and charged with dealing firearms without a license. He has pleaded not guilty.
But guns are not the reason the veteran officer has been held without bond since his arrest four months ago.
Instead, the Chinese-born naturalized US citizen has remained behind bars amid concerns about his secret-level security clearance and what prosecutors described as “highly suspicious” contacts with Chinese consular officials in Los Angeles.