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Why Did Trump Invoke Executive Privilege in the Fight Over the Census Citizenship Question?

Here's what you need to know about Trump's assertion of executive privilege and what's ahead in the debate over the citizenship question.
On Wednesday, June 12th, 2019, President Donald Trump invoked executive privilege in the fight over the census citizenship question. On the same day, a House Committee voted to hold Attorney General William Barr and Secretary of Commerce Wilbur Ross in contempt of Congress.

On Wednesday, President Donald Trump asserted executive privilege to block Congress from reading materials that led to the addition of the new citizenship question for the 2020 Census.

Later in the day, the House Committee on Oversight and Government Reform voted to hold Attorney General William Barr and Secretary of Commerce Wilbur Ross in contempt of Congress "for refusal to comply with subpoenas" related to the 2020 Census, CNN reports. The subpoenas include claims of both civil and criminal contempt. The issue will now advance to the full House of Representatives for further action.

Last month, documents revealed that the citizenship question appeared to be intentionally designed to undercount Democratic Latinx voters. (Research suggests that over six million additional people won't participate as a result of the new question.) As Jack Herrera wrote for Pacific Standard, Thomas B. Hofeller, a GOP strategist and a key player in adding the citizenship question, had previously designed voting maps based on eligible citizens of voting age (as opposed to population). He wrote in the revealed documents that these new maps "would be advantageous to Republicans and non-Hispanic whites." Hofeller recommended adding the question to the census, and encouraged the Trump administration to justify its addition as important for enforcing the Voting Rights Act of 1965.

That's the argument that Ross has since relied on. However, as Pacific Standard previously reported, "multiple courts have found that Ross wanted to add the question regardless, and then pressured the Department of Justice to find a justification for it."

"Their justification for wanting to ask the question has always been the Voting Rights Act, but that doesn't actually make any sense because experts know that asking about citizenship data on the census was only going to give us less accurate citizenship data, which in turn will make it harder to enforce the Voting Rights Act," says Kelly Percival, a counsel with the Brennan Center's Democracy Program.

The Supreme Court is currently considering the citizenship question, and a ruling could come as soon as the end of June. The timeline for the other legal proceedings remains less clear.

Here's what you need to know about Trump's assertion of executive privilege and what's ahead in the debate over the citizenship question.

Why Did Trump Invoke Executive Privilege?

On Wednesday, Trump asserted executive privilege to protect Barr and Ross—and the private proceedings leading up to the addition of the citizenship question—from the House's subpoena.

The basic idea behind executive privilege is that "each branch has to have some confidentiality in their internal communication so that decision makers can get candid advice," says Saikrishna Bangalore Prakash, a professor of law at the University of Virginia, who focuses on the separation of powers, specializing in executive power.

What's the benefit of invoking executive privilege in this case? Time, Prakash says. "It's often a long, drawn-out process," Prakash says, during which the administration can review documents and decide which it believes should be "privileged," or kept confidential from Congress and the public.

The House is aware of the administration's strategy: "The leadership in the House is cognizant of the time value of delay, and they don't want delays," Prakash says. "So they have issued subpoenas faster than has been the case in the past."

"If Trump had nothing to hide, his administration would not resist the call to defend this untested, last-minute question," Vanita Gupta, president and chief executive officer of the Leadership Conference on Civil and Human Rights, said in a statement. "The president's latest assertion only raises the question: What else are they hiding?"

What Will Happen Next?

After a congressional committee requests information and the executive branch declines to allow Congress to access all (or some) of the documents, it is up to the head of the committee to decide whether those are acceptable conditions, Prakash explains. If they are unacceptable, Congress will try to get a court to adjudicate the subpoena and Congress' right to information, and decide whether to uphold the subpoena.

If negotiations are successful, or either the administration or chamber changes hands, a settlement may occur. But if no settlement occurs, the courts will be forced to intervene. "Typically before [the courts] get involved, they try to get the parties more time to resolve it through negotiations," Prakash says, because "the courts don't want to decide these questions."

Negotiations of some sort will eventually occur, but if they don't work, the courts will ultimately decide the case. "In our system, the executive branch honors a court judgment. They may appeal it and hope that it gets overturned, but they don't typically say, 'We are not gonna follow it,'" Prakash says. "I don't think the executive branch is prepared to defy judicial orders."