Can President Trump Legally Use an Executive Order for a Census Question on Citizenship?

Courts uphold the vast majority of executive orders. There are occasional exceptions.

Congress tried but failed to pass a law prohibiting employers from hiring replacements for striking employees. President Clinton then used an executive order to say that no federally funded work could be used by contractors to hire replacement workers. An appellate court struck the order down.

You might be asking yourself: If it’s true that most executive orders are upheld by courts, why didn’t the president use this mechanism first? Now, the Supreme Court has openly cast doubt on the motives for the administration’s use of the census question.

What the Commerce Department said is that the question will help to improve enforcement of the Voting Rights Act, a federal law. 
Fair enough, said the Supreme Court last week: But the reality is that the real reason for the question is to undercount the population and apportion more House and Electoral College votes to Republicans. 
The Court said that the census question did not pass an “arbitrary and capricious” standard.

My prediction? Given the sequencing of the order, it will have the same fate as Bill Clinton’s order for striker replacements. Remember: Clinton used an executive order to accomplish something that Congress rejected in a vote. This situation is different: There was no vote in Congress, but there was a 5-4 vote by the Supreme Court.

If courts allow the order to stand, executive power will expand to the point where we have a king in the United States who can defy the votes of the Congress and Supreme Court. The arbitrary nature of King George III’s rule— and America’s revolt against the abuse of power— is why we are celebrating freedom on the Fourth of July.