How Trump's Executive Action Could Help With Census Problem
Congress Delegated to Executive Branch Wide Discretion, With Few Controls, Regarding Questions on the Census
The answer, says public interest law professor John Banzhaf, is that while Article I, Section 2 of the Constitution does provide that the census shall be conducted "in such Manner as [Congress] shall by Law direct," Congress has lawfully delegated - "by law direct[ed]" - most of this authority to the executive branch, and more specifically to the Secretary of Commerce who reports to Trump.
13 U.S. Code § 141gives the Secretary almost unlimited discretion to make changes in the questions to be asked, provided only that he submit to various committees of Congress a report containing his "determination"
Since Secretary Wilbur Ross serves at the pleasure of the President and must follow his orders, it would appear that Trump could simply direct the Secretary to add the citizenship question to the census, provided that Ross also submit the appropriate reports stating his reasons. Indeed, the Supreme Court said that the citizenship question could be added if a new rationale were to be provided.
This, suggests Banzhaf, would trigger an entirely new legal ball game in which the new rationale would be subject to only a very limited scope of judicial review, and whatever taints might have affected Ross' earlier decision - specifically the suspicious emails - would not be involved unless they could be tied directly to Trump.
Issuing a new executive order mandating the inclusion of the citizenship question on the census would have many advantages over trying to have the Secretary himself react, suggests Banzhaf:
* because a president's views are entitled to much greater legal deference, his rationale for including the question is much more likely to be accepted by the courts
* a president's decision making process is largely shielded from the legal discovery which exposed Ross's explanation as "contrived" and "pretextual"
* President Donald Trump, unlike Ross, would not have to backpedal and undercut earlier contrary official statements to come up with acceptable rationale for including the question on the census
* courts are less likely to formally accuse a sitting president of lying than a cabinet secretary.
To survive judicial scrutiny, the rationale for including the question - especially if offered by the President - does not have to be supported by any evidence in a formal record or otherwise, nor need it even seem, to judges, to be persuasive, well reasoned, or an honest explanation, notes Banzhaf.
Here, as the Court explained, the Secretary, "in these unusual circumstances,"
Otherwise, virtually any explanation which is not completely frivolous on its face would have to be upheld as within a president's vast unreviewable discretion. It's a new ballgame, says Banzhaf.
Thus, for example, President Trump might simply say in an executive order that he needs citizenship information to help make a variety of executive decisions, or to better understand the nature and extent of the illegal immigrant problem, to examine on a state-by-state basis the percentage of illegal aliens present, to have data if - as some Democrats seek - various benefits are extended to aliens, etc.
JOHN F. BANZHAF III, B.S.E.E., J.D., Sc.D.
Professor of Public Interest Law
George Washington University Law School,
FAMRI Dr. William Cahan Distinguished Professor,
Fellow, World Technology Network,
Founder, Action on Smoking and Health (ASH),
2000 H Street, NW, Wash, DC 20052, USA
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