There certainly seems to be a lack of consensus in the Trump Administration over the census question. Yesterday both the Commerce Department and the Justice Department confirmed that the Administration would drop the controversial census question over undocumented status after the stinging defeat before the Supreme Court. Even conservative justices threw up their hands by the lack of foundation laid by the Trump Administration on the need or rationale for the question. Now there is utter confusion as the President insists that this Administration will litigate the issue again.
The Supreme Court case was another example of the Administration snatching defeat out of the jaws of victory due to a lack of competent work in laying a foundation for review. There were clearly five justice inclined to recognize the authority to include the question. The Administration simply had to satisfy minimal requirements for a record on appeal. Instead, they litigated a position that can only charitably be described as so casual as to be virtually conversational.
When the agencies threw in the towel, it made sense since the Administration was facing potentially embarrassing new discovery that might show a political motivation for the addition of the question. The government is also running out of runway to get this census off the ground. Nevertheless, the Justice Department has announced that it will now litigate the question — contradicting statements of its own counsel.
Joshua Gardner Special Counsel to the Justice Department issued a surprising statement that basically declared utter confusion and chaos:
“The tweet this morning was the first I had heard of the president’s position on this issue, just like the plaintiffs and Your Honor. I do not have a deeper understanding of what that means at this juncture other than what the president has tweeted. But, obviously, as you can imagine, I am doing my absolute best to figure out what’s going on.”
The Justice Department not surprisingly will follow the direction of the President on litigating the issue. However, this is yet another embarrassing moment for an Administration that has had a series of missteps in court.