Politico reports that “President Donald Trump is expected to take an executive action to add a question about citizenship to the census, according to two people familiar with the situation.” Their report follows up on a somewhat more vague Trump tweet which hints at such executive action.
The White House will be hosting a very big and very important Social Media Summit today. Would I have become President without Social Media? Yes (probably)! At its conclusion, we will all go to the beautiful Rose Garden for a News Conference on the Census and Citizenship.
— Donald J. Trump (@realDonaldTrump) July 11, 2019
No matter what Trump says or does, however, it shouldn’t matter one bit. The Trump administration had a chance to add this citizenship question to the 2020 census form — a move that would shift U.S. House representation to white Republican communities — but it blew its chance. It blew its chance because it lied to the Supreme Court, and five justices called them out for lying.
But the Trump administration also blew its chance for another reason. The Justice Department repeatedly told multiple federal courts that “the census forms must be finalized for printing by the end of June 2019.” Indeed, a brief filed by a team of lawyers led by the American Civil Liberties Union lists a dozen separate occasions where Trump administration lawyers made this claim.
It’s now July 11th. That’s after the end of June 2019.
The problem this creates for Trump arises out of a doctrine known as “judicial estoppel.” Estoppel doctrines generally prohibit a party from making one claim, and then contradicting their own assertion when that assertion becomes disadvantageous.
In this case, the Trump administration repeatedly claimed that there was a June 2019 deadline because they wanted to encourage courts to decide the legality of the citizenship question as quickly as possible. The courts obliged, moreover. The trial judge expedited his hearing of the case, and the Supreme Court invoked a rarely used procedure to bypass the court of appeals and review the trial court’s decision directly.
As the Supreme Court explained in Pegram v. Herdrich, “judicial estoppel generally prevents a party from prevailing in one phase of a case on an argument and then relying on a contradictory argument to prevail in another phase.” Here, the Trump administration prevailed in its efforts to rush the case because of its assertion that there was a June 30 deadline. Now it wants to prevail in its efforts to reinstate the citizenship question by claiming that its own stated deadline was bogus.
That’s not allowed. And if the courts respect the ordinary rules that govern any other litigant, they won’t let Trump get away with this tactic.