, 15 tweets, 7 min read Read on Twitter
A thread with some thoughts on DOJ's letter in the #Census2020 case, which can be found (alongside some great analysis from @rickhasen) here.

First, it's unsurprising for DOJ to assert that any "new" decision to add the Q must be assessed w/o reference to the history of the policy

As I noted at @ShallTakeCare, it's a standard, oft-repeated move in the Trump DOJ's 'animus-laundering' playbook

Indeed, amid debate over the #TransBan and #TravelBan, I wrote an op-ed for @PostOpinions in *March 2018* identifying this animus-laundering strategy and warning that we could expect to see a lot more of it

This is exactly what we're seeing now: an effort by the Trump Administration to insist that courts blind themselves to all relevant context -- even a prequel to the VERY SAME decision under review -- and engage in a fantastical, fictional form of "no history here" adjudication
Yet while it's predictable that DOJ cites the #TravelBan & #TransBan for this proposition, it argued those cases on the explicit premise that they involved unique contexts: immigration & the military.

For DOJ to analogize those cases to the census is unprincipled & hypocritical
And let's not forgot the undeniable oddity of conservatives -- lawyers, judges, and hacks -- tripping over themselves to celebrate deference to administrative agencies and the perils of subjecting agency action to probing review
Or the absurdity of efforts by some conservatives to insist that this citizenship data is needed for reasons that the DOJ has expressly disclaimed (e.g., CVAP) or is elsewhere undermining (rigorous enforcement of the right to vote)
Or suggestions that even though the Enumeration Clause appears in Article I of the Constitution (which sets forth the Legislative Power), somehow #POTUS secretly enjoys a vast, atextual, untapped reservoir of inherent Article II power to modify the census as he sees fit
The key fact is that #SCOTUS invalidated Ross's decision as pretextual.

I read the opinion as leaving room for Trump to try again, though others (including @dorfonlaw & @Profepps) raised strong arguments that it couldn't reasonably do so.

But this blatant, clumsy, amateurish, and painfully public scramble for some new pretext - which DOJ's lawyers have all but described as such - makes a mockery of any breathing room that the Chief's opinion left the Trump Administration in seeking to retain a citizenship question
The idea the Commerce Dept might simply jam random pieces of paper into the census questionnaire without testing them, or screw around with a printing deadline that it invoked to induce #SCOTUS to grant cert before judgment, reveals maladministration of the highest order.
Courts should reject DOJ's cynical efforts to wipe the slate clean or to pretend that everything is totally normal here. The law does not require (or permit) that result. The census is too important to allow such shenanigans, which belong in trashy fiction novels, not real life.
One final point: All this talk about the SG rushing to #SCOTUS for emergency orders that upend the litigation process, skip district court proceedings, rewrite all applicable deadlines, or revise the Chief's already-issued opinion ... well, it's bizarre and exceedingly desperate.
It exemplifies precisely the same view that I've previously described: the idea that Judiciary, with Trump's appointees, is an outpost or ally of the executive branch rather than an institution with rules, norms & procedures that must be taken seriously.

Especially given that any emergency application to #SCOTUS would evoke the Court's equitable authority, the administration's disastrous handling of this entire situation and it's misrepresentations to the Court about deadlines should foreclose any special treatment.
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