Attorney General

DOJ replaces lawyers defending citizenship question after flip-flop; law prof suggests this argument

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The U.S. Department of Justice announced Sunday that it is replacing its legal team in the court battle over a census citizenship question after President Donald Trump contradicted the lawyers’ in-court assertion that the question would be dropped from the census.

The DOJ said in a statement it is “shifting these matters to a new team of civil division lawyers going forward,” report the New York Times, Politico, the Washington Post and NPR.

After Trump tweeted Wednesday that “we are absolutely moving forward” with the question, DOJ lawyer Joshua Gardner appeared in court to explain his earlier assertion that the question would be dropped. Gardner said Friday Trump’s tweet was the first that he had heard of the president’s position, and he was doing his “absolute best to figure out what’s going on.”

The New York Times sees the legal-team changes as a possible indication that career lawyers “had decided to quit a case that at the least seemed to lack a legal basis.”

According to the New York Times, lawyers had said there was a June 30 deadline for printing the census forms, and they may have concluded that there was no way to restore the question quickly enough. The New York Times also said there may be difficulties in providing additional explanation for the Commerce Department’s decision to add the question to the 2020 census.

A decision by the U.S. Supreme Court in June had upheld a district court’s decision to ask the Commerce Department for a better explanation of its decision.

Commerce Secretary Wilbur Ross had said he was adding the citizenship question in response to a request from the DOJ for better citizenship data to assist in its enforcement of the Voting Rights Act of 1965. The Supreme Court cited evidence uncovered by the district court that suggested that there was “a disconnect between the decision made and the explanation given” and said “contrived reasons” should not be accepted by the courts.

Critics have said the real reason the question was added was to depress the count of immigrants and help Republicans when redistricting data is used in redistricting.

Political districts have been drawn based on total population, rather than citizen population, the Wall Street Journal points out. The 14th Amendment says representatives should be apportioned based on the “whole number of persons in each state.”

Trump has suggested that he might use an executive order in a bid to add the citizenship question, according to the New York Times. Conservatives have suggested several new justifications that could be used, including one based on another clause of the 14th Amendment, report the Wall Street Journal, the Volokh Conspiracy and the Atlantic.

The theory, suggested by Josh Blackman, a professor of constitutional law at the South Texas College of Law, is that Section 2 of the 14th Amendment makes the question a requirement. The section reduces a state’s congressional seats in proportion to the number of citizens denied voting rights.

More specifically, Section 2 says if a state denies “the right to vote” to any of its “male inhabitants … being citizens of the United States,” then the state’s representation in the House of Representatives “shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens 21 years of age in such state.”

Some law professors have said it’s too late to make the 14th Amendment argument. The reason is the procedural rule called “claim preclusion” that doesn’t allow a do-over on arguments that weren’t previously advanced, writes Garrett Epps, a professor of constitutional law at the University of Baltimore, in his story for the Atlantic.

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