host: our guest as deputy erved director for the policy development services for constitutional law attorney. he is here to talk about the citizenship question. good morning. you talk about a certain approach the administration could take in getting the question on the 2020 census. what is that approach? caller: administration -- guest: the administration can argue that it compels the giveal government to information on citizen numbers. it can be done by executive order, that the president would sign, ordering the department of commerce to put this question on

the census. i also want to emphasize that the supreme court decision agoed two weeks specifically stated, by a majority, that it is admissible to ask this question. the congress did not block the president from doing that. the problem wasn't entirely procedural. it is certainly something that can be carried. it happens all the time where a government agency or department on asomething it has power stature to accomplish, but doesn't do it well. it happens to a bunch of upper agencies. host: when it comes to the section two of the 14th amendment, to read from the op-ed he wrote on this, you said the section two of the 14th amendment provides the state denies the franchise to anyone's eligibility to vote should --

the language is absolute and mandatory. compliance is impossible without lives.g to many citizens where does that come from? guest: it's part of a war amendment. providing -- to prevent the states from engaging in discrimination and denying citizens rights. at the time, only male citizens 21 years or older were allowed to vote. it was changed by the 19th and 26 amendment. what this language try to do is come up with a mechanism of penalizing states that this franchised a portion of their citizens. there was no version of the language in reference to race. that got changed to more generic language, referencing the race

and color, in the 15th amendment. about people that tweeted it, this leg which has never been used by congress, but it does not matter. there are a lot of provisions in the constitution unutilized. postwar amendments have been used in an enforcement sense for many decades, but it is a provision that has to be enforced. the only person who can do that is the president. why census? section two of the 14th amendment amends section two article one, the very same section that deals with the census. that information is meant to be gained from the census. the president is the only one who can do that. congress does not run the census. what is important is that congress of never -- congress never objected to the charge of constitutional duty. it does not specifically

mentioned this, but nothing in the census act prevents the president from doing it. how do we know that? the supreme court said 5-4 that it is permissible under the statute. host: our guest with us to talk about the citizenship question on the 2020 census and his arguments he laid out in an op-ed, you can find it online. if you want to ask them questions, call us at (202) 748-8000, for democrats. (202) 748-8001 for republicans. independents are (202) 748-8002. if this is done by executive order, is that a weaker way of getting this done versus the other -- guest: it's strong in two ways. first of all, it's quickly. second, if the president proceeds in that fashion, they take off of the table the administrative questions about amassing the record. the sole question on the table would be, is this constitutional?

is this within the scope of the president's powers? the answer is yes. an interesting tidbit is that criticism is not addressed but has been lodged by the president's equal protection clause. the argument is that doing this discriminates against portions of a population, therefore violates protection laws. , in 1974,e court entertained a challenge to the california policy of this franchising -- disenfranchising. that contravenes the equal protection clause, because of section one of the 14th amendment. the supreme court parsed section one and section two and made a specific point that something that is expressly allowed on the section two, section two allows abridgment of voting rights of citizens who participated in rebellion or crime. the courts said you cannot

possibly violate equal protection clause by doing something specifically in section two. people who wrote the 14th amendment were not at war with themselves. that definitively answers the question of whether or not the section two compliant policy can never be considered a violation of the protection clause of section one. guest: there's a gentleman -- host: there's a gentleman named matthew frank writing for national review. let's take your analysis of the approach of the op-ed. he had said that the admin meant on the 14th amendment, doesn't actually protect any voting rights by any direct enforcement action by the federal government? it's the worst kind of "keeping the constitution into with the nonsense to say that today's male citizens over 21 mean all eligible voters as they claim." guest: to put it gently, he is

wrong for a couple of reasons. first, the reference in section leo was to mail citizens -- ma citizens. franchised was changed, legitimately so in my opinion, perfectly good thing. amendment, the fact that the reference there is the male citizens does not -- how the constitution works. the other point remains, which is frank lee silly, is that he does not see much of an opportunity for judicial enforcement. that's not necessarily true, but there are numerous provisions in the constitution that are not provisionally enforceable. they can be something that the judiciary is not equipped to enforce. it doesn't mean they are not binding. the notion the clear constitutional command -- i can tell you this much as practicing

-- unconstitutional it has not been sufficiently enforced area the only way you can supplant outs additional language is having an amendment that officiates it, which happened in the original one whichn article changed by section one of the 14th amendment. he's just wrong. what is interesting, the reason i emphasized that case, in 1974, after the 19th amendment, the 26th amendment ratified. instead -- they treated section two as a pivotal part of the decision the california policy of not allowing x felons to vote was constitutional. the minority of justices on the supreme court in 74 made the

same point about what, in their opinion, was wrong with section two of the 14th amendment. it only protected a portion of eligible electorates. six justices disagree. i'm happy this up in court majority -- to be in the supreme court majority. host: there are calls that the attorney general says he sees a path forward in getting this question on the census. you suspect -- do you suspect the path is the one you are advocating for? guest: i'm hoping that is the case. it is not the only path, but the most expeditious path. i have a lot of respect for doj. i think they will find the right way to receipt -- proceed. host: did you talk to them specifically about the stuff that'll? guest: no. they can figure out -- stop at all? guest: no. they can figure it out themselves. host: jack, republican line, go ahead. caller: thank you very much.

i'm not a lawyer, i'm a retired engineer. ancestors came into the united states from germany in the 1880's. i don't know what the immigration laws were then, at that time. my grandparents were born here, but my ancestors came -- they had skills. they were tool makers. and, i'm a retired manufacturing engineer now, so i would like to know, what would the immigration laws -- where the immigration laws at that time in the united were the immigration laws at that time in the united states? and i support the question on citizenship. it should be asked. guest: the immigration laws throughout history were quite

unrestricted. we were welcomed, pretty much everybody, with very few exceptions. until they had the infamous chinese exclusion act, the first ofr to cap certain types immigrants, the chinese, from arriving here. that was the political judgment made properly and was not done in resistance mode. it was political judgment made by congress at the time, and it made perfect sense. to be clear, there's a good relationship, in my opinion, aside from section two, having a good snapshot of the distribution of citizens and noncitizens throughout the country. and, seeing from one census to another, what the trends are. secondaryion, is a point but helps to have a more informed discourse, hopefully, civilized bait about immigration. host: out of seattle washington,

eric is next calling on our line for independents. good morning. you are on. caller: good morning. thank you. i feel like something that would help the census is two things. number one, we need to stop changing people's nationality when they come here to the united states. what i'm saying is that they are considered russian, german, chinese, whatever they come from. when they come from the united states -- to the united states, russians are allowed to say they are white people. once people get to the united states, all caucasian people, wherever you are from, poland, you are just considered white. tost: how does this relate the citizenship question and what would you like to ask the guest about it? caller: i would like to ask in this. trump's mother was an immigrant and came here. wives, both of them are

immigrants. host: color, thanks. guest: i think this country benefits from immigration. i came here as a refugee, as a young lad. question abouthe citizenship does not discriminate against anybody and does not block anybody from coming here. i believe people should come here illegally. i think legal immigration -- here legally. i think legal immigration is something that should be managed, but i don't see a problem asking the citizenship question. it's important for your viewers, that this question was asked until 1950, every single senses. on antinues to be asked sample of the census forms after 1950. the concept that this is unordinary is untrue. host: the viability, if you taken that question, what would it do for the account overall? guest: i'm not a statistician,

but i find it implausible. there are strong laws in place to bar the use -- misuse of data. there are two criticisms that i heard about the consequences of putting the citizenship question on the senses. it would precipitate considerable percentage of people to fail to respond. the second is that it would not be accurate because they will lie, in a sense of somebody not a citizen saying i am a citizen. i don't see, logically, how both of those things can be true. host: let's hear from north carolina, mike, republican line. go ahead, please. caller: good morning. is it true the citizenship question was on the senses and the obama administration had its removed? thank you -- it removed? thank you. guest: i don't have any idea if that is true. it is conceivable.

one of the things i would like to suggest that benefits not only the debate about this issue but other issues, who cares what happened a long time ago and who did what to whom? the question as far as the interagency battles and all of this is concerned, does it make sense to ask this question? is it constitutionally permissible? is it legally permissible? the critics, for example, it is not the question. critics point out some gentleman who died in 2015 who wrote a memo suggesting adding this question might be politically beneficial to republicans. had any impactat on this process? to me, it doesn't do much quality on discourse to be pointing fingers. host: you were previously at the justice department saying the legal team said this question

was being replaced and those lawyers may be coming from the consumer protection branch. is there anything there that you might add? guest: no. from what i understand, the people who originally defended the census rulemaking were part of a federal programs branch. they brought other people, civil vision included, and it happens all the time. when i was litigating a number of years ago, i challenged obamacare. that is the case that went to the supreme court. was a deputydy who assistant attorney general and replace a number of line attorneys. times.ppens a number of i wouldn't draw implications or speculate.

[indiscernible] preparedwyers are not to defend this case. there plain city. host: virginia is from riverside california -- riverside, california. democrats. hi. caller: hi. glad to speak this morning. under his breath, when he started talking about this, he was saying, in my opinion, in my opinion. where is it documented in his opinion and wears it in black-and-white in 1952? i'm 75 years old, and i understand the senses. i've never been asked that question. i've been here while. is parens.uestion didn't they just drop that a few years ago -- parents. didn't they just drop that a few years ago? are they going to be citizens because trump is president? a good question, i think.

guest: on the first question, change came in 1950, again. if you look at the duration, most of our history, the question was asked. we appreciate0, the fact that it is not asked to and all of the census forms, the short forms. the long forms, asked questions about trump's parents -- not trump's parents. the parents of melania. i'm sure they will get the form, but i don't see what it matters. is, whyhe real issue does it make sense to ask this question? is it legal? host: talk about the legal challenges. what does it face? guest: there will be legal challenges, unfortunately. i think it is eminently defensible, but the lower courts have stopped the rulemaking from

being implemented would rule against the administration. is going to seek an emergency review by the supreme court during the summer. quite unusual, but happened before in history. i have every confidence the supreme court would uphold this. host: how to put the citizenship back in the census. you can find that on the wall street journal's website. republicanlifornia, line, you are next up. good morning. caller: yes. if you count all of these illegals in california, that is going to give california and other sanctuary states more representatives in congress than his proper, so if they don't ask that question on the census form , i will just boycott the whole senses altogether -- census altogether.

that's how i can lower the count in california. the census will be very inaccurate. host: ok. guest: i would encourage everybody to respond to the census question. i understand the concern some people have expressed. about the fact that you have states that are disproportionately attracting illegal immigrants, undocumented immigrants, and therefore, artificially beef up the allotment of seats in the house and there rep position -- representation in the electoral college. viewers need to understand that, currently, a portion is done, numeration is done based on total population numbers. there are people who argue that you need to get back to a baseline. this is not what this debate is about. we are talking about having a givetion that would accurate information, not the way -- changing the way the process unfolds. host: were you surprised that

the chief justice was the right majority on that opinion? guest: i was surprised. i have a lot of regard for the justice. i disagree with him strongly on this issue. to be fair, the administration didn't do a good job at developing the record -- not the administration, the commerce department. they made themselves vulnerable, and the chief justice was concerned about this lobby rulemaking record. are sloppy, ins my opinion. the way things work, administrative law, that was good enough. in twor, the chief -- different majorities, they put the proposition legal onto the census act and a 5-4 majority, a joined chiefority,

justice is that it was probably done. -- first time in history because it was somehow pretextual. i think there's a compelling language in the senses that suggests a lot of times you develop -- census that suggests a lot of times that you develop multiple reasons why you get there. the reasons you choose to articulate may not be the most important reasons. work, so ithings thought it was wrong -- a wrong decision. important to emphasize, if the trump administration comes out with another approach that violates ,he supreme court case decision

just being totally disingenuous, the court is clear that you can take another stab at it and another stab. it happens all the time. government agencies and departments are being forced to redo things by the courts all the time. it doesn't mean -- host: after the sloppiness of the original argument, how would you boil it down? guest: for reasons that are probably obvious, this became institutionally and politically airy controversial. that's where the number -- politically became controversial. that's where the number of came. that's called democracy. were not talking about political masses from mars, political masters that reflect the policy preference of the administration voted in by the american people, the majority of american people. let's go to florida,

independent line, john. answer waiting. caller: good morning, pedro. if you could give me a minute to make my point. kin, you kind of confuse me with your answer to the woman from chico, california. how does this not affect apportionment in the electoral college? isn't everything based on the census as far as representation goes? there are no 11 or 12 million illegals in this country. it's closer to 40 million illegals in this country. i need a better answer from you regarding that, because to me, it doesn't make sense. how do we base apportionment, based the electoral college if not for this census? guest: thank you. the current law is using the total person baseline.

the census numbers are going to come in, i assume a citizen question will be on it, and it will say this many citizens and this many noncitizens. those numbers would be aggregated. let's say the citizen number is 10 and noncitizens is two. 12 would be the total baseline going into it. the supreme court, in a case called even wheel out of texas, dealt with a question where the plaintiffs argued it is constitutionally required to use the citizenship numbers. the supreme court was not impressed with that argument and rejected it, leaving on the stateshe question if wanted to use citizenship numbers rather than total persons could do so. there will be quite a bit of litigation on this issue, but for purposes of the 2020 senses, all of your viewers need to be assured that having decision -- the citizenship russian would

not -- citizenship question would not take off from the citizens. the criticism you may have heard was that the noncitizens might be scared to answer so they would take themselves out of the census, if you will, instead of two, you would have 10 and one. i'm not a statistician, so i don't think that argument makes a whole lot of sense. host: this is from virginia, nadia, independent line. hello. caller: hello. sir, in my opinion, this administration and the supreme court's opinion, this administration wanted to place the question, the citizenship question on the census for extremely various reasons, so in my opinion, this administration should be blocked from putting this question on the 2020 census , and coming forth with another reason is quite frankly

unacceptable. we know, for a fact, and the supreme court stated that they wanted the question for nefarious reasons. so why you are putting so much credibility in this administration baffles me. they are not about the democratic process. they are about suppressing boats. there are -- votes. there are factual other sources that are more accurate to obtain citizenship numbers. that is a fact, sir. guest: a couple of things. i'm a lawyer. i happen to be a republic and supporting this administration. not on this issue, but many issues. even if i felt totally differently, the law is the law, the constitution is the constitution. this is a very unfortunate part of our debate to say because this is a bad administration and trump is a bad guy that nothing they do should be counted.

i think it's wrong and un-american, frankly. the second point, i'm a lawyer. that is not what the supreme court said. they didn't say anything as far as majority is concerned or nefarious motives. they said the particular rationale put forward reason.the real they didn't say it was a bad reason. they said it was a good reason, but not the real reason. it happens all of the time where epa, federal energy regulatory , the exchange commission have the rules struck down because of administrative deficiencies. the entire administrative state would come to a halt. if you try something badly the first time, and you cannot fix it. it doesn't work like this. it doesn't work as a philosophical matter about what you should do, and it doesn't work like this as a matter of

law. host: david rivkin, constitutional lawyer and other law here in washington, d.c., a longtime person of washington as far as working in the administration, served as the deputy director of policy to 1989.nt from 1981 lee is from the democrats line. georgia. good morning. caller: be honest with the people. man who put in that book was hired by the republicans [indiscernible] that's what he did, tried to get it onto the citizenship thing. [indiscernible] be honest with the people. don't sit on tv in front of your family in the world and tell lies like l don't know what's going on. what'sl don't know

going on. that man was hired to do that. that question had not been on there. obama didn't take the question off of that thing, off the citizenship thing. the question had been out of there from 50 to 70 years. host: let our guest respond. guest: i don't know when this question -- what was the policy of the obama administration, and i don't think it matters. there has been all sorts of speculation about nefarious purposes of putting down this question. happened and what what was in people's hearts and minds, and i'm not prepared to speculate about it. what i'm prepared to say is that this question is constitutionally required, number one. that would be true no matter what administration is in power. the question is legally defensible and permissible under

these census act -- the census acts. i don't believe this question would have any political implications as far as responses. me to speculate, i would say the people opposing it with such vigor are doing that's because they don't want the breakdown of citizens and noncitizens data to be available in this format, if you will, because they understand that would have implications and would have debate about any other matters. how was more information about thing in a democratic society? -- is more information about anything in a democratic society about thing? caller: good morning. this census question is good for immigrants legal in this country.

we enter in this country and they already have [indiscernible] from green card to citizenship. if this question differentiates between legals and illegals, this is a good question, and i don't think any legal immigrants should have a problem with that or if there is anything wrong with this question. guest: i don't think there's anything wrong with the question. i think it's a good question. i happen to think even if an illegal immigrant -- i can't say this question couldn't get you into any trouble, but i don't think people will want to respond to this. there are two issues going on. a knee-jerk reaction from some callers but also quite clearly in this day and age that anything this administration is doing is by definition wrong. second, there are people that do not want to have the information about the total number of

noncitizens in this country, legal and illegal. as information is already exist. recordse administrative , social security, et cetera. having this question come from census would give additional credibility. there are people that say we have 11 to 12 million illegal aliens. i don't know what the right number is, but having this information is a useful, key into the debate. the people that don't wanted are not doing justice to their own position. host: a wall street journal piece is called how to put citizenship question back into >> later today on c-span, a debate between british foreign secretary jeremy hunt and former foreign secretary boris johnson. the two can days to replace theresa may as british prime minister and leader of the conservative party. watch that debate live at 3:00

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