Thursday, July 11, 2019

Breaking news: Trump shifting strategies on data gathering about citizenship; dropping census push, exploring other ways through executive action [updated with EO 7/12/2019]

The Trump administration is expected to issue an executive action Thursday directing the Commerce Department to obtain citizenship data through means other than the US census, according to CNN and ABC news. This would displace efforts to add a question about citizenship status to the 2020 census, setting aside his demands last week to continue pursuing the issue despite a Supreme Court order blocking it.

The specific means that he would use to gather the information remain to be seen. Trump tweeted Thursday morning he would be holding a press conference in the Rose Garden in the afternoon about "the census and citizenship." CBS news is reporting that a senior administrative official says he will sign an executive order on the matter that would enable the collection of citizenship information without involving the 2020 census. Attorney General William Barr is expected to be part of the announcement and has been saying that he can see a legal path forward, notwithstanding the Supreme Court's decisions that block their effort to include the question on the census. Earlier Thursday, administration officials said Mr. Trump was planning on issuing an order to add the question to the census, but the situation did not appear set in stone. Hogan Gidley, a White House spokesman, said the president has made a decision about what to do but "anything could change before 5 o'clock," when the president is set to speak. The WSJ is reporting that, "In Thursday’s news conference, the president will outline an executive order that lays out the administration’s reasoning for why the government needs citizenship-status data and how it would use it, according to an administration official. The order doesn’t direct any actions be taken related to the 2020 census."
 
Analysts have questioned whether switching to an executive order would change the ability to collect information following the Supreme Court's decision. The power to conduct the census resides with Congress. And courts have the ability to set aside executive orders, just as they can set aside legislation. As Garrett Epps set out in The Atlantic, "Trump seems to think he can avoid preclusion by issuing an executive order imposing the question. As of July 7, 2019, however, the federal courts still have the power to set aside unconstitutional executive orders. Ask the late President Harry Truman, who, as commander in chief, seized American steel mills in order to end a strike that was interfering with the Korean War effort. The Supreme Court told Truman he had no such power, and Truman meekly gave back the mills. Maybe the label “executive order” will magically intimidate Roberts. But I wouldn’t bet on it. If I am right, Trump loses again. Except … Donald Trump doesn’t really recognize that courts have any authority over him."
 
There may be administrative means of collecting the information that would fall more neatly into President's executive power, even if the court would still have the final say about whether it comports with the law. The federal government already collects citizenship information through means other than the 10-year census, including administrative records and a survey that goes out to a small sample of the population every year. The Census Bureau, which falls under the Commerce Department, has long favored using administrative records such as data from the Social Security Administration, IRS, US Citizenship and Immigration Services and the State Department to gather citizenship data, rather than asking individuals to self-report their status on the census itself. These sources of information already exist, notwithstanding the exeuctive order. 
 
UPDATE: Trump's announcement appears in the video below: "I'm hereby ordering every department and agency in the federal government to provide the Department of Commerce with all requested records regarding the number of citizens and non-citizens in our country." The executive order directs agencies to provide the Commerce Department with documents and records of citizens and non-citizens, which he said would help provide an accurate picture of US citizenship.
More reports (and here) and the EO to be added as the story develops.
 

MHC

https://lawprofessors.typepad.com/immigration/2019/07/trump-shifting-strategies-on-data-gathering-about-citizenship-dropping-census-push-exploring-other-w.html

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