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Vows on Hill and in court to stop Trump from keeping immigrants out of House count
Democrats and civil liberties groups are threatening legislation and lawsuits to prevent President Trump from excluding undocumented immigrants from the population counts used to apportion House seats for the next decade.
The president directed the government on Tuesday to provide the states with census numbers that exclude millions of people living in the country illegally — setting up a potential balance of powers fight as well as a constitutional dispute over whether congressional districts should be drawn based on numbers of people, as has been the long-standing practice, or only citizens.
Civil rights groups gave notice in federal court Wednesday that they would fight Trump's effort. The American Civil Liberties Union readied a separate lawsuit. The House Oversight and Reform Committee announced it would convene an emergency hearing next week and may write a bill to thwart the president. And Speaker Nancy Pelosi vowed that Democrats "will vigorously contest the president's unconstitutional and unlawful attempt to impair the census."
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The Census Bureau is in the middle of its once-a-decade head count, among the most important and extensive bureaucratic undertakings of a functioning democracy. The results will not only determine how many of the 435 House seats shift to the fastest growing states at the expense of other places, but it will also provide numbers for drawing election lines at the state, county and city level. The numbers will also determine the distribution over the next decade of $1.5 trillion in federal spending that's allocated by demographic formula.
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More than 62 percent of households have responded, and census takers last week started appearing at the homes where residents haven't responded. The bureau this week mailed out 34 million postcards to households reminding them to answer the census questionnaire as required by law.
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"It is the policy of the United States to exclude from the apportionment base aliens who are not in a lawful immigration status," Trump said in a memorandum Tuesday. It said that states with undocumented immigrants should not be given more representatives as this would only encourage them to continue to harbor such people.
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If Trump gets what he wants, which could end up requiring the Supreme Court to disregard the consensus understanding of the Constitution, the effect would be more seats shifting to Republican states instead of Democratic ones.
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"The Constitution requires that everyone in the U.S. be counted in the census," Dale Ho, the voting rights chief at the ACLU, said in a statement. "President Trump cannot pick and choose. He tried to add a citizenship question to the census and lost in the Supreme Court. His latest attempt to weaponize the census for an attack on immigrant communities will be found unconstitutional. We'll see him in court, and win, again."
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Last year, Trump's effort to put a citizenship question on the census was <a href="https://www.supremecourt.gov/opinions/18pdf/18-966_bq7c.pdf" target="_blank">derailed by the high court</a>, making it difficult to determine how many undocumented immigrants are in he country.
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In a statement accompanying his memorandum, however, Trump noted that federal agencies "have been collecting the information needed to conduct an accurate census and inform responsible decisions about public policy, voting rights, and representation in Congress."
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Under that <a href="https://www.whitehouse.gov/presidential-actions/executive-order-collecting-information-citizenship-status-connection-decennial-census/" target="_blank">executive order</a>, which civil rights groups are already fighting in federal court, agencies are to provide the Commerce Department, which oversees the Census Bureau, with data and records that could be used to separate citizens and noncitizens.
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The president's latest move, "if carried out, could upend the balance of power," said Sean Moulton, a senior policy analyst at the <a href="https://thefulcrum.us/project-on-government-oversight" target="_self">Project on Government Oversight</a>. "This move by the White House to ignore a significant percentage of the population and summarily redefine how we apportion representative power in this country is inappropriate and potentially unconstitutional."
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Democratic Rep. Jamie Raskin of Maryland said Trump's action highlights his "inexhaustible contempt for our constitutional system and the rule of law. The U.S. Constitution requires 'an actual enumeration' of the 'whole number of persons' in the country for 'apportioning representatives among the states in Congress.'"
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As evidence that his action is legal, Trump cited a unanimous 1992 Supreme Court decision that found the Commerce Department could apportion members of the military serving overseas at their home of record: "Congress has provided that it is 'the president's personal transmittal of the report to Congress' that 'settles the apportionment' of representatives among the States, and the president's discretion to settle the apportionment is more than ceremonial or ministerial and is essential "to the integrity of the process."
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Groups in favor of less immigration praised the decision.
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"The process of including illegal aliens in the census count for the purpose of reapportionment, as it has been practiced in recent decades, is fundamentally unfair to law-abiding Americans, and the president should be applauded for taking long overdue action to safeguard their interests and constitutional rights," said Dan Stein of the Federation for American Immigration Reform.
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However, the courts have rejected <a href="https://law.justia.com/cases/federal/district-courts/FSupp/486/564/1753930/" target="_blank">attempts by FAIR</a> to remove undocumented immigrants from apportionment. The Supreme Court already struck down Trump's attempt to add a citizenship question to the census because it was added with the intention of undercounting undocumented immigrants and lowering the amount of funds and representatives these areas have.
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(Danielle Brian)
Danielle Brian is executive director at the Project On Government Oversight.
Meet the reformer: Danielle Brian, a dean of the watchdogs
Danielle Brian is executive director of the Project On Government Oversight, a nonpartisan independent watchdog that investigates corruption, misconduct and conflicts of interest in the federal government. A South Florida native and National FOIA Hall of Fame member, Brian has testified before Congress more than 40 times in the 27 years she's been leading the organization, which goes by the memorable acronym POGO. She returned to the group and took the reins in 1993 after interning there a decade earlier. Her answers have been lightly edited for clarity and length.
What's the tweet-length description of your organization?
@POGOBlog is a nonpartisan watchdog that fights to fix the federal government. We investigate corruption, abuse of power and when the government silences whistleblowers. We champion reforms to achieve a more effective, ethical and accountable federal government that safeguards constitutional principles.
<p><strong>Describe your very first civic engagement.</strong><br></p><p>During my internship for my member of Congress, I persuaded him to change a vote. I thought it was because of the power of my arguments but learned later from the legislative director that it was the passion with which I made my case that won him over.</p><p><p style="text-align: center;" id="sufn"><a style="font-weight: bold;margin:40px auto;font-size:2rem" href="https://thefulcrum.us/st/newsletters">Sign up for The Fulcrum newsletter </a></p></p><p><strong>What was your biggest professional triumph?</strong></p><p>Working with whistleblowers, we helped to expose a massive fraud against taxpayers by the oil and gas industry. When we sued the 15 biggest oil companies, they fought back hard and got their friends in Congress to go after us for them. After years of battles that might have destroyed the organization, we not only emerged stronger, but we forced the companies to pay nearly $500 million back to the taxpayers, helped break up the Minerals Management Service into three separate agencies at the Interior Department and caused the regulations to change so that companies couldn't commit that fraud again in the future.</p><p><strong>And your most disappointing setback?</strong></p><p><strong></strong>Not getting intelligence community whistleblower protections into the Whistleblower Protection Enhancement Act when we helped get it passed in 2012. (But maybe now we will!)</p><p><strong>How does your identity influence the way you go about your work?</strong></p><p><div class="x12"><div class="htlad-Desktop_Content_Banner"></div></div></p><p>Being an independent, I'm liberated from feeling the pain of partisan hypocrisy.</p><p><strong>What's the best advice you've ever been given?</strong></p><p>When it comes to working in Washington, it's a combination of "Put not your trust in princes" and Stephen Stills' "Love the one you're with." I have learned to work with a person I agree with on an issue, but I don't assume we will agree on anything else.</p><p><strong>Create a new flavor for Ben & Jerry's.</strong></p><p>"Exposing Cocoa-ruption": nuts partially covered in chocolate in a swirling base of strawberry and blueberry.</p><p><strong>What's your favorite political movie or TV show?</strong></p><p>I can't decide between West Wing and House of Cards. It depends on my mood.</p><p><strong>What's the last thing you do on your phone at night?</strong></p><p>Check to see if either of my adult kids or my mom has texted.<br> </p><p><strong>What is your deepest, darkest secret?</strong></p><p>I worked for Geraldo Rivera! </p>
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House passes bill to speed an end to inspector general vacancies
Congress is so annoyed at how slowly presidents have nominated inspectors general that both parties want the reason down on paper.
The House passed a bill by voice vote Wednesday that would require a president to provide a written explanation whenever an inspector general's job has been open for at least 210 days without a nominee. It also would compel the president to estimate when a nomination is coming.
The current roster of vacancies is alarming to advocates for bettering democracy who focus on improved ethics and a commitment to open government. An IG's role is to be the independent watchdog posted inside a department or agency, investigating cases of waste, fraud and abuse and blowing the whistle with regular reports to Congress.
Of the 37 inspector general positions filled by a presidential nominee confirmed by the Senate, 11 are vacant — the job being done in some cases by acting or deputy IGs whose qualifications have not been vetted at confirmation hearings.
<p>Some of the departments with the biggest budgets — including Defense, Education, Health and Human Services, and Homeland Security — are without a confirmed IG. </p><p><p style="text-align: center;" id="sufn"><a style="font-weight: bold;margin:40px auto;font-size:2rem" href="https://thefulcrum.us/st/newsletters">Sign up for The Fulcrum newsletter </a></p></p><p>Five of the jobs have been open since before the end of Obama administration. The Interior Department has not had an IG for more than a decade. President Trump has sent the Senate names to fill that job and just one other.</p><p>At a House Oversight and Reform Committee hearing in March, Democratic Chairman Elijah Cummings of Maryland said the "disturbingly slow" nomination process has been a problem through multiple administrations.</p><p>Forcing the White House to at least explain he it hasn't chosen new watchdogs is designed to speed the pace of nominations, if for no other reason than to avoid questions about whether preventing waste is a priority for an administration, said Rebecca Jones, policy counsel at the <a data-linked-post="2638673739" href="https://thefulcrum.us/project-on-government-oversight" target="_blank">Project on Government Oversight</a>, which last year released a <a href="http://www.pogo.org/report/2018/07/watchdogs-after-forty-years-recommendations-for-our-nations-federal-inspectors-general/" target="_blank">report</a> offering recommendations to strengthen the work of IGs and <a href="http://www.pogo.org/database/inspector-general-vacancy-tracker/" target="_blank">tracks</a> current vacancies.</p><p>"That's not a question you want to have come up," she said. "Hopefully this will make it so that we don't even get to that phase because the president will prioritize nominations."</p><p><div class="x12"><div class="htlad-Desktop_Content_Banner"></div></div></p><p>Last year the Government Accountability Office <a href="http://www.gao.gov/assets/700/690561.pdf" target="_blank">reported</a> that 53 of the 64 major inspector general positions had been vacant at some point during the decade that ended in 2016, with the openings ranging from two weeks to six years. The law permitted many of those to be filled by an appointment, without a confirmation.</p><p>No one in the Senate has yet filed a companion to the House-passed bill. But two senators, Republican Charles Grassley of Iowa and Democrat Maggie Hassan of New Hampshire, <a href="https://www.grassley.senate.gov/sites/default/files/2019-06-17%20Hassan%2C%20CEG%20to%20POTUS%20%28Inspector%20General%20Vacancies%29.pdf" target="_blank">wrote</a> to Trump last month urging him to "swiftly nominate qualified individuals to fill critical Inspector General (IG) vacancies" across the federal government.</p>
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Advisories committees, like the FOIA modernization panel (above) that included the author, serve as a vehicle for agencies to get regular input from different perspectives and as a method of holding the government accountable, writes Moulton.
Closing the door on advice
Moulton is a senior policy analyst at the Project on Government Oversight.
In an outright rejection of the basic concept that the federal government makes better decisions when it gets experts' input, President Trump recently issued an executive order instructing all federal agencies to eliminate at least one-third of their advisory committees that aren't required by law. This is sure to do more harm than good. In fact, it may well drive input from outside experts — on everything from public health to cybersecurity, from trade to civil rights — into the shadows, where we don't know who agencies are hearing from, what is being said and where the public doesn't have a voice.
Executive Order 13875 directs agencies to eliminate committees that have achieved their objectives or whose subject matter is obsolete. The order also sets an arbitrary government-wide cap of 350 advisory committees not required by law, which will impede agencies from getting timely advice on policy decisions and other federal actions.
<p>Let's take a step back and talk about where federal advisory committees come from and why we have them. While the federal government has many experienced personnel, it still needs the knowledge of outside experts and the perspectives of different stakeholders to inform decision-making. Until the early 1970s, this process was largely opaque. Each agency came up with its own way to gather input, and how transparent to be about it. Some held public hearings and convened blue-ribbon commissions to solicit advice, but others made crucial policy decisions in private meetings, with no accountability.</p><p><p style="text-align: center;" id="sufn"><a style="font-weight: bold;margin:40px auto;font-size:2rem" href="https://thefulcrum.us/st/newsletters">Sign up for The Fulcrum newsletter </a></p></p><p>Then, in 1972, Congress passed the Federal Advisory Committee Act to create an open and formal process for the government to receive objective advice on a wide range of issues. Normalizing the system was intended to ensure that all agencies were running advisory committees the same way. The law required agencies to be transparent about these committees, including publishing the membership and backgrounds of all members, holding meetings open to the public and giving the public advance notice of meetings, and issuing minutes from all meetings. In short, it made sure the public knew what was going on and could participate in the process. It was an effort to cut down on the backroom deals that benefited few and eroded public trust in the government.</p><p><div class="x12"><div class="htlad-Desktop_Content_Banner"></div></div></p><p>The current number of active committees has hovered around 1,000 for several years, according to a <a href="https://fas.org/sgp/crs/secrecy/R44253.pdf" target="_blank">2016 Congressional Research Service report</a>. A little more than half are required by various laws, so they can't be eliminated. About 450 committees that are authorized but not required by law, or were initiated under agency authority, are the ones eligible for elimination and are the main target for the order. So a third of those, roughly 150 committees, are potentially on the chopping block. (The order exempts committees providing scientific advice on the safety of products as well as those at agencies with fewer than three eligible committees, so the final number of advisory committees lost through this process will likely be a bit lower in the end.)</p><p><div class="x12"><div class="htlad-Desktop_Content_Banner"></div></div></p><p>I served two terms on a federal advisory committee to modernize the Freedom of Information Act. The FOIA process is a critical tool for holding agencies accountable and uncovering hidden truths, allowing anyone to request and receive records from federal agencies unless the records are protected under specific exemptions. But the system has long been plagued by problems and needless barriers including long backlogs of requests, overly broad use of exemptions to avoid disclosure, and unnecessarily high fees. The advisory committee made up of agency officials, requestors, and academics sought improvements that agencies could implement. In the end, we agreed on a series of substantive recommendations, including a long list of records that agencies should proactively disclose without waiting for requests. Committees like this serve an important purpose both as a vehicle for agencies to get regular input from different perspectives and as a method of holding the government accountable.</p><p>I'm not claiming that every advisory committee is perfect and vital to the proper functioning of the federal government. The federal advisory committee system is far from perfect. The committees can be cumbersome to manage for agencies. Too often, committees' memberships are imbalanced, with an overreliance on industry and private-sector participation and too little input from public-interest groups and academics. Loopholes allow some committees to make many of their decisions behind closed doors by having subcommittees and working groups tackle large portions of the work, with limited or no public reporting of the process. Agencies receiving recommendations from advisory committees often don't offer an official response to the advice, leaving the results of the process unclear.</p><p>But the solution to these problems isn't to simply eliminate advisory committees. Agencies will continue to need outside expert advice — so if these formal committees disappear, I'm concerned that agencies will revert to less formal processes to get advice, without an open process and or public participation. Closed-door meetings with industry lobbyists as agencies' primary source of advice would be a huge step backwards — a return to uneven process across the agencies and less public trust in the results. </p><p>Instead of randomly cutting away at committees, the president should improve the process we have, build on what works and solve identified problems. A better executive order would keep the transparency and accountability but find ways to make working with committees easier and faster for agencies. The administration should be setting standards to ensure a greater balance of views in the membership of committees so that agencies get a broader, more objective perspective from their committees.</p><p>It's a mistake for the administration to ignore the importance of advisory committees and cast aside transparency and accountability for some theoretical streamlined expediency. It's not in the public's best interest for agencies to be making decisions on complicated matters without the benefit of expert advice — or for agencies to privately pick and choose who gets to give advice.</p>
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