It is well known that President Donald Trump likes to watch Fox & Friends every morning. So it is likely that the commander-in-chief was watching Thursday when a young man at a diner in Riverside, Missouri, schooled Fox News reporter Todd Piro on the particulars of the Green New Deal.
But even if Trump didn’t see it, everyone else did. As of Friday, a video clip of Fox’ interview with Jack, a customer at The Corner Cafe, had been viewed about 2 million times—boosted in part by a retweet from Congresswoman Alexandria Ocasio-Cortez, who cosponsored the ambitious plan to decarbonize the economy.
When your ‘gritty, guy-in-a-diner’ news profile doesn’t go quite as expected ?
In the interview, Jack appears like a random dude sitting in a random diner at 6 a.m., who just happened to know a ton about climate policy and just happened to disagree with everything that Fox News stands for. That is likely why almost every article written about the segment thus far (and there are a lot) does not explain who Jack is or why he was at The Corner Cafe that day. The mystery is part of the virality.
But Jack, whose last name is Vandeleuv, doesn’t want his identity to be a mystery. The 23-year-old from Overland Park, Kansas, told me he’s a volunteer climate change activist with the Sunrise Movement—the same group that’s led the charge for a Green New Deal.* And his presence at the diner on Thursday morning was no accident.
Here’s a condensed and lightly edited transcript of our conversation:
Earlier this morning I was on a radio program, and the host and I were talking about your Fox & Friends segment. The host said, “I just want to know how this guy got in the diner in the first place.” So let’s start there. How did this happen?
At about 8 or 9 p.m. the night before, one of the members of Sunrise KC [the Kansas City chapter of Sunrise — Editor] got a Facebook message from a friend who had just run into a Fox producer at a restaurant, and the Fox producer said that Fox and Friends were going to be at this diner in the morning. They wouldn’t say what it was about; just that something’s happening.
So a call went out on Facebook, and me and one other person from Sunrise KC showed up there at about 6 a.m. And we were lucky enough he happened to put us on air.
What was the best-case scenario in your mind? What were you hoping would happen?
We thought maybe they would put us on air—but really we thought it would be about Howard Schultz’s town hall that was happening later that evening somewhere in Kansas City. We thought maybe they would take questions from the diners about what they wanted to ask Howard Schultz about, and we’d get to ask what he’s going to do about climate change.
So this probably went way better than you thought.
A little bit, yeah.
Was there a pre-interview? And was it with Todd Piro? Because he seemed kind of bewildered by your answers, like he wasn’t prepared for them.
Yeah, there was. Todd came up to us and said, “Are you here for us, or to eat?” And we said both. He said, “What’s your issue?” We said climate change. He said, “Do you support the Green New Deal?” We said yes. Then he asked some other questions about it, but he seemed really fixated on the cost of the Green New Deal. So I was prepared for him to ask about that in case he gave us a live interview.
I think what he was surprised by was that he was expecting to be able to trip us up. You know, he was expecting to be able to hammer in on this question and get a moment out of it. And I think I held up in the moment, and it seemed surprising.
I was definitely surprised. Like when Piro asked “How are we going to pay for it?” and you immediately said “How did we pay for World War II?” I was like, “Oh, snap.” Why did you choose that comparison?
Two reasons. One is that I have a degree in history. Two, more importantly, is that I think that’s the most helpful analogy for the Green New Deal, right? That’s why they call it the Green New Deal. Because once upon a time in America, we were facing a huge problem, and the government made a massive investment to employ tons of people. So I think that analogy is inherently baked into the Green New Deal, and I think people intuitively understand it.
It was also just a sink or swim moment, and that was what came out of my mouth. And I’m happy with it. But I don’t have any training for this kind of stuff and I don’t have any particular expertise, but I was really inspired by David Wallace-Wells’s book on climate change that came out earlier this year.
Is that why you joined the Sunrise Movement? Like, is climate change just something you’ve read about and decided to be concerned about? Or is there anything personal in your life that has made you more concerned about climate change than perhaps the average person?
There’s something I’ve connected with in the last year that I hadn’t connected with before. When I was 14 months old, my house flooded in Illinois. My mom was pregnant with my little brother, and she had to take me and climb up on the roof to get away from the water and sewage. After that, we were in a hotel for a little while, and eventually we moved away to Phoenix, Arizona. It’s a story that’s always been in my family and it’s one of my earliest memories.
I’ve done some research about it online as an adult, and it was supposedly a once in a 100 year flood. TheNew York Times at the time called it a biblical event. My understanding through my parents is that because of some technicality, our insurance covered the flood. But I know from the news that I’ve gone back and read that only 1 percent of residents in that area had flood insurance because no one was expecting a flood.
And now stuff like this is happening all the time.I’m not in an area affected by the flooding in Iowa and Nebraska, but it’s super close to me. And so it’s just really starting to hit me recently that this is something that really does affect me in a very concrete way.
You’ve gained a lot of internet popularity since your segment aired, mostly for being this random dude who schooled Fox News on climate change out of nowhere. Are you worried that people might be disappointed now to know that you weren’t just a random guy—that you’re affiliated with this climate group and that you had an agenda all along?
I don’t know how people are going to react to anything that’s going on. But I see myself as a random person. I only joined Sunrise in February. Everything I do is 100 percent volunteer. I work part time at my local library to make money. To go from that to AOC tweeting me out is not something I would have expected.
Honestly, I have not finished processing this and don’t really know what it means for me. But I will say it’s been really crazy. To show up at a random diner and speak my understanding of climate change, and then get this crazy outpouring of support. I think it shows the value of showing up, and voting with your feet.
* A previous version of this article misstated where Jack Vandeleuv lives.
DES MOINES—Caroline Schoonover has two immediate goals. One of them is to systematically dismantle capitalism. The other is to finish watching all seven seasons of Vanderpump Rules.
“There are a lot of things that are not funny to me when I’m thinking about the state the world is in, but there is something about Vanderpump Rules,” the 28-year-old told me, referring to the Bravo reality show that revolves around a wealthy British restaurateur and her employees. “It is just purely entertaining for me, in a way that is very low stakes.”
Schoonover, who grew up near Martensdale, Iowa, just south of the state capital, is one of the thousands of Millennials across the country who joined the Democratic Socialists of America after the 2016 election of Donald Trump. I met her one evening in mid-March during a visit to Iowa, my home state, right before she led a monthly chapter meeting. Schoonover is tall, blond, and ruddy-cheeked, with a goofy sense of humor that probably comes in handy during her day job teaching children about agriculture at a local museum. She’s finishing up her second year as the co-chair of the Central Iowa DSA, a position she sees as a way “to actually do something instead of being mad and upset every day after Trump became president.”
Iowa is a state that most Americans associate with straw polls and horse-race politics, and whose residents are generally thrilled to soak up the national-media spotlight every four years ahead of the caucuses. It isn’t, in other words, where most people would expect to find participants of a budding movement to overthrow the country’s political and economic system. One popular perception of socialism in America is that it’s a sort of pastime for affluent and cerebral hipsters. A recent article from New York magazine described the DSA as feeling like a “never-ending Brown University reunion,” where “extremely online” people attend mixers and try to date each other.
Caroline Schoonover, the co-chair of the Central Iowa DSA, says that her group is “not a Bernie Sanders fan club just waiting for our chance to finally knock doors for him.”
But Schoonover and the other socialists I met in Iowa are not Upper West Siders from moneyed families, nor are they, for the most part, graduates of elite Ivy League schools. They are very much online, but they aren’t members of the left-wing Twitterati—the well-connected media types who frequent secret happy hours where they are wooed by 2020 presidential contenders. Socialism, to them, is not a trendy niche hobby or an intellectual exercise for the political-theory obsessed.
Instead, the people I spoke with see the DSA as a vehicle for changing their own immediate circumstances. They want to build a movement that transcends individual politicians, whose positions are malleable and whose tenure is temporary. And while most establishment Democrats would like to distance themselves from the label, the trajectory of America’s newly surging socialist movement could ultimately shape the party’s future.
Schoonover’s chapter, which has about 160 members, didn’t exist before 2016—none of Iowa’s DSA groups did. In the more than two years since the presidential election, membership in the organization around the country has grown dramatically—from 6,000 to 56,000—and chapters have formed across the heartland. Iowa now has five throughout the state, and at least two smaller ones being founded. Recent polling shows that a majority of the likely Democratic caucus-goers in Iowa, 56 percent, say they would be happy to vote for a president who leans toward socialism. In February, Axiosreported that several of the more moderate presidential candidates are worried about running because of the Democratic electorate’s leftward shift; one unnamed candidate’s own internal polling shows that in Iowa, socialism is viewed more positively than capitalism.
A key problem with these surveys, however, is that it’s still unclear what people think socialism means. Even the national DSA organization doesn’t have a set definition. “We have various definitions,” a spokesperson told me. “We’re a big-tent organization.” Under the DSA umbrella, one can expect to find all types of political philosophies, including Marxists, Leninists, communists, and even libertarian socialists. Socialism is a loaded term, full of history and dripping with stigma, for many Americans; the word hearkens back to Soviet Russia and conjures grim images of street riots and bread lines. That’s an impression Republicans are promoting ahead of the 2020 elections, as “socialist” has become Trump’s new insult of choice for Democrats in recent weeks.
But for the card-carrying Democratic Socialists I met in Iowa, those old stigmas hold no power.
Socialism, to them, means a fairer world—one where every person is born with a guaranteed right to things like health care and education; it looks like France’s crèche child-care system, or Sweden’s comprehensive welfare programs. “For me, it means de-commodifying most things, and especially decommodifying things people need,” explained Alex Loehrer, the 32-year-old co-chair of the Iowa City DSA, which has roughly 100 members.
It was a chilly Sunday morning in March, and Loehrer was seated at the head of a long table in a meeting room at the Iowa City Public Library. She was surrounded by 10 other chapter members, who took turns offering their interpretation of socialism between sips of Dunkin’ Donuts coffee. It’s all about allowing people “to control their access to their basic needs,” said Denise Cheeseman, a 20-year-old University of Iowa graduate student with a blond pixie cut. Ryan Hall, an undergraduate student at the university and the chapter’s other co-chair, said that the key word for him in the DSA’s title is democratic: “We really are pushing for an egalitarian ownership over our economy, over our well-being, over our decision-making processes.”
All the members at the meeting had their own reasons for joining the DSA, but most of those reasons were rooted in personal financial struggle: They were drowning in an ocean of student debt, or straining to pay their rent or afford their insurance premiums. David Sterling, who identifies as gender fluid and uses they/them pronouns, works as a cashier in the city’s public-parking division. Sterling, 26, grew up in Iowa City, but has had to move farther out of town to escape the creeping rent. And they weren’t able to afford the cost of tuition at the University of Iowa after graduating from high school. “I’ve dreamed about going to the university in my hometown [for] most of my life,” Sterling said. “How sad is that?”
DSA members like Sterling have concluded that the cause of their financial woes is capitalism—and that the solution is to replace it with something else. For now, members of the chapter said that they are happy to fight for more immediate reforms, such as Medicare for all, a higher minimum wage, and stronger union rights. But ultimately, they see these policies as insufficient. “Capitalism is international,” said 34-year-old Rob Shaw, Loehrer’s husband and the chapter’s social-media manager. “Domestic reforms to a system that is international aren’t going to cut it.”
The magnitude of their project is something the members across the state have been reckoning with—do they first try to take on systemic racism, or health care, or money in politics? For efficiency’s sake, all the DSA chapters in Iowa have agreed to focus primarily on housing, which means informing renters about their rights and setting up local tenants’ unions. Chapters have already established renters’ unions in Ames and Dubuque, two of the state’s mid-sized cities. The choice makes sense. Iowa City was recently ranked as the most expensive place to live in Iowa, and Millennials, on their way to becoming the largest age group in the U.S., are much more likely to rent than own their homes compared with previous generations, reports a recent study from the Urban Institute. Two reasons for this contrast, according to the people surveyed, are climbing rents and high student-loan debt.
Many members of the Central Iowa DSA think that the state’s caucus system is undemocratic, but they are preparing to confront the 2020 candidates at events around the state.
After the library meeting, the Iowa City socialists spent two hours marching between duplexes and apartment buildings in the southeast part of town, gathering signatures for the union. The people they spoke with were eager to share their stories of negligent property managers, and almost every tenant signed up for more information on how to join. We stopped at a boardinghouse to visit with one middle-aged woman who had recently begun to attend DSA meetings. She explained that her landlord planned to evict all the tenants rather than make necessary repairs to the building, and she wanted to find a way to fight back. A week before our visit, she didn’t know what democratic socialism even was. This, chapter members told me, is exactly the movement they’re trying to build.
“You don’t have to understand theory to understand Marxism,” as Schoonover, the Central Iowa co-chair, put it to me later in an interview. “You know that your boss takes advantage of you, that your landlord takes advantage of you. You know that you’re in debt, you know that you pay too much for health care. You don’t need to sit around and talk with a bunch of snobs about that to understand it.”
For the first few hours of my visit to Des Moines, I sat in a folding chair and watched the Central Iowa socialists participate in a refresher course on “bird-dogging,” the hunting-inspired term for assertively eliciting comment from a politician—similar to how reporters interrogate lawmakers in the halls of Congress. The socialists I spoke with aren’t excited, per se, about the 2020 presidential campaign beyond the possibility of defeating Trump, and many don’t plan to caucus, calling the state’s primary system undemocratic. But they are preparing to confront the candidates at events around the state. At the training, chapter members practiced framing and asking succinct questions, rehearsed the art of rapid hand-raising during candidate Q&As, and learned where and how to corner politicians after campaign stops. The chapter recently challenged Michael Bloomberg, the former New York City mayor who had considered a presidential bid, about his environmental record during his tour of the state. And they’ve already set their sights on a few other 2020 targets, including Senator Kamala Harris, the California prosecutor turned lawmaker whom Schoonover describes simply as “a cop.”
The DSA members I met are frequent critics of many prominent Democrats, including—and maybe especially—some of the party’s most beloved icons. Former President Barack Obama, for example, is “complicit in American imperialism,” one told me. Ex-Representative Beto O’Rourke and his broad platitudes represent “everything that is wrong with the political systems of power in the United States.”
So it was frustrating for many of them in March when the DSA’s governing body formally voted to endorse Sanders for president. Sanders, who identifies as a democratic socialist, helped open Iowans’ eyes to the political possibilities of the movement with his 2016 campaign, but Schoonover and other members of the Central Iowa chapter still have issues with the senator from Vermont. For example, he hasn’t publicly backed any measures for reparations for black Americans, and he doesn’t support the boycott, divestment, and sanctions movement, a campaign advocating financial separation between the United States and Israel.
But more important, they say, working on behalf of a single candidate will only distract from their efforts to organize tenants and build power in their communities. “We don’t talk about Bernie,” Schoonover explained. “He’s not a factor in our organizing at all.” Most of them would certainly prefer Sanders to other Democrats in the 2020 field, and individual members can volunteer for him on their own time, Schoonover said. “But we’re not a Bernie Sanders fan club just waiting for our chance to finally knock doors for him.”
The DSA chapters in Iowa have agreed to focus much of their organizing on housing issues.
The DSAers in Iowa really have only one goal ahead of the 2020 presidential election: Move the conversation to the left in the first state that gets to winnow the Democratic field.
This is, of course, the opposite of what many Democratic Party leaders want. Many of them are desperate to distance themselves from any association with socialism, worried that it will scare off the party’s more moderate voters. It’s important, they say, not to mistake the growing popularity of policy ideas that can be described as socialist for the spread of full-blown socialism. House Speaker Nancy Pelosi, for example, practically leapt to her feet to applaud when the president vowed that America “will never be a socialist country” during his February State of the Union address. And multiple 2020 candidates have rejected the label, including progressive Senator Elizabeth Warren of Massachusetts, who recently called herself “capitalist to my bones.”
When I asked Troy Price, the Iowa Democratic Party chairman, how he would describe the left’s trajectory in his state, he paused. “I hate to use the word socialist,” Price said, suggesting that instead, “there is a more organized effort” to push the government “to help solve the biggest issues facing us right now.” Price further dismissed the idea that the DSA has any particular prominence in Iowa: “There’s been a rise of all sorts of different organized groups that have come up since the 2016 election. DSA is definitely one of them.”
Cathy Glasson, a nurse and the president of SEIU Local 199, was the most progressive candidate in recent history to run in an Iowa gubernatorial election, in 2018. But she doesn’t identify as a democratic socialist, and she doesn’t see Iowa moving in that direction. “I’m not sure it’s socialism we’re seeing,” Glasson told me. It’s just that “there is a tremendous eagerness” in Iowa for “bold, progressive ideas.”
But the DSA members I spoke with would contend that, at least in the short term, they are fighting for the same policy goals as progressive Democrats like Glasson. They want to expand union rights, pass Medicare for all, increase the minimum wage, and address climate change, just as she does—and just as leading 2020 presidential candidates do.
And like Glasson, the socialists, too, see an increased appetite for these ideas. It’s well established that Trump’s election served as a kind of wake-up call for Democrats. His ascendance, an affront to the sensibilities of liberals across the country, spurred a lot of them to join grassroots organizing groups or campaign for a candidate, many for the first time in their life. But it has also made admissible some ideas that were once on the fringe of public discourse. Confronted with what they perceive as the Trump administration’s radical agenda, people are now more willing to embrace radical solutions.
“There’s actually a really great quote by Lenin that says, ‘You have to be as extreme as the reality you confront,’” Casey Erixon, a 27-year-old DSA member, said one night at a bar on Ingersoll Avenue in Des Moines. (The exact quote from the Russian revolutionary: “One must always try to be as radical as reality itself.”) We were at a social for socialists: Schoonover was there, along with several other members of her Des Moines–based chapter, all hunkered over beers and discussing their last meeting. Erixon, who grew up just outside Crescent, Iowa, had worked on Obama’s reelection campaign in 2012. He’d always liked Obama, he said, and assumed that the former president’s “incrementalist” approach to progress was the right one. But after Trump’s win two and a half years ago, Erixon gave up on establishment politics.
“There is a growing sense that the system is broken,” he told me. From across the table, another DSA member, 28-year-old Blake Iverson, interjected—if he’d admitted to being a socialist a few years ago, people would have been dismayed, he said. Now “it’s like, Okay, that’s a normal part of the political landscape. That’s a normal position to hold.”
This is what frustrates them both about socialism’s reputation, in some circles, as a sort of elite club for bookish rich kids. Erixon didn’t graduate from college, and he works as a career coach for people with disabilities. Iverson, too, dropped out of school, and now makes $13 an hour as a teacher’s aide. “I’ve been to Brooklyn, Iowa, more than I’ve been to Brooklyn, New York,” he said with a chuckle. It just goes to show, they told me, that the socialist movement is for everyone.
With less than a year until the caucuses, and more than a dozen Democrats officially in the mix, Iowa is overrun with candidates, who are popping up in schools and workplaces and balancing on countertops at their local coffee shops. But while in-state Democrats are focused on the present—attending candidate meet and greets to suss out which Democratic contender is most likely to beat Trump—the Democratic Socialists of Iowa have their sights set on something much bigger. Something they will be working toward well past the 2020 election.
“We are facing, as a city and as a state and country, systemic problems that require solutions all across the board,” Rob Shaw told the Iowa City chapter members before they embarked on their door-knocking mission. “The only way we’re going to do that is if we actually organize a base that can respond to more than one problem.”
“What do these problems stem from?” asked Alex Loehrer, the co-chair, from across the table. “Do you want to say it for the record?”
“Fuck capitalism,” Shaw replied with a smile. The chapter members cheered.
Early in the first episode of Killing Eve’s second season, Eve (played by Sandra Oh), pallid and shaky after committing an unplanned act of violence, walks unthinkingly into a train station. She goes into a candy store, where she piles scoop after scoop of jelly beans and gumballs into a pink-and-white striped paper bag. The saleswoman raises an eyebrow at Eve’s wanton gluttony—the bag is full and yet she keeps adding more, until a pale blue marshmallow tumbles out and lands in front of a small boy. As he reaches out to take it, Eve pounces, slamming her hand down upon his as her face transforms, just for a second, into a snarl.
The moment evokes the first-ever scene in Killing Eve, when the feline, malevolent assassin Villanelle (Jodie Comer) tipped ice cream onto a little girl in a Vienna gelateria. The subtext is striking: The show is insinuating that Eve, whether she wants to or not, is getting closer to her antagonist, the woman whom she hunted for several episodes, the woman who stabbed her mentor to death—and the woman whom Eve in turn knifed in the stomach at the end of Season 1. Eve isn’t just pursuing Villanelle, the show suggests; she’s also absorbing her.
The secret of Killing Eve is that its macabre sense of humor and spy-story subversions are ornamental compared with the series’s grist: the strange, transformative pull the two main characters have on each other. Their unmistakably female dynamic vastly outbounds the “We’re not so different, you and I” synergy of other cat-and-mouse criminology dramas. Before Eve stabbed Villanelle, she first demolished her Paris walkup, smashing champagne bottles and ripping clothes into shreds. Then she confessed to Villanelle that she couldn’t stop thinking about her, and lay down next to her on Villanelle’s bed, as the air between them seemed to thicken. Finally, Eve stabbed Villanelle, an act of aggression that was loaded with sexual symbolism and tension. Their relationship, more uncanny than unconventional, is what made Killing Eve one of BBC America’s biggest hits.
BBC America
The only problem with the show, which heads into Season 2 on Sunday night, is the paradox Eve and Villanelle now present. Comer’s extravagant charisma as Villanelle, her unsettling charm, is balanced by Oh’s comic awkwardness and perma-panic as Eve. You cannot, at this point, imagine one without the other, and yet a television series can’t just repeat the cycle of its original season over and over. If Eve and Villanelle stalk each other in perpetuity, intermittently meeting to kiss or maim, or both, Killing Eve will handcuff its own narrative potential. But to exile either character is equally unthinkable. So what now?
At least from the limited episodes made available for review, Killing Eve has struck a compromise between change and more of the same. Phoebe Waller-Bridge—the twisted, cherubic, filthy genius behind Fleabag who created Killing Eve and spearheaded its first season—has stepped away, but she’s anointed her friend, the actor and writer Emerald Fennell, in her stead. Fennell, who once wrote a short story for children about cannibalism, and who’s playing Camilla Parker Bowles in the upcoming third season of The Crown, feels about as fitting an heir to Waller-Bridge’s demented-patrician sensibility as anyone could imagine. From the first two episodes, which Fennell wrote, she choreographs Killing Eve’s pas de deux between light and dark with audacity. (In one scene, Villanelle tells a child who’s been in a car accident that his face “looks like a pizza.” In another, Eve responds to her feelings of trauma by striking up a lengthy conversation with a telemarketer selling double-pane windows.)
The second season is different from the first, though, because Eve is different. She fears she might be a murderer. She’s become momentarily engulfed by a sexualized encounter with a psychopath, someone who seems to kill more for sport than for professional validation. In the first episode, Oh plays Eve as mostly numb, with flashes of exuberance and despair. Villanelle, meanwhile, is the same as she ever was (the series pulls a fiendish trick early on that hints she might be developing a sense of empathy, only to brutally punish you for being taken in). Circumstances, though, have made Villanelle vulnerable. Forced to flee her home, and leave behind her armor of couture clothes and elaborate disguises—not to mention her actual weapons—Villanelle also has an incapacitating abdominal wound (“It’s really gooey,” she says, with grim pride) and no handler to help her.
The new episodes reverberate with a sense of humor that’s absurd, bleak, and distinctly British. (If a grown man ever offers you a “hotty-botty,” Killing Eve emphasizes, run.) Where title cards once announced the glamorous locations Villanelle frequented (Berlin, Paris, Rome), now they trumpet her arrival in the unlovely English town of Basildon. She spends a good amount of time in the first two episodes wearing boy’s superhero pajamas that are comically small. Fennell finds unspoken ways to enhance our understanding of who Villanelle is: The assassin has no problem throwing herself in front of a car to get medical attention, but she physically recoils in a later scene when the only shoes available to her are a pair of yellowing, plastic hospital Crocs. Danger doesn’t trouble her; ugliness does.
Eve, though, is more of a question mark. It’s unclear at this point how her encounter with Villanelle has changed her, or what her motivations might be going forward. Previously, her relationship with her husband, Niko (Owen McDonnell), was a small additive to the show but a healthy one; now, Eve seems like she could easily descend into the annals of dramatic heroines with dysfunctional personal lives. She’s still exceptionally intuitive, which makes her an excellent criminal profiler, and though the show only gestures at explaining how she’s back in her old job, the investigative scenes allow Oh moments of pure comedy. Staring at a graying, scarred corpse in a morgue, Eve suddenly exclaims that she’s craving a hamburger. “That’s the formaldehyde,” the pathologist says, cheerily. “The smell of the bodies makes you crave meat.” Killing Eve, wherever it might go from here, is just as contradictory—however gruesome or morbid it is, you tend to hunger for it, fiercely, just the same.
Erin Hustings is legislative counsel for the National Association of Latino Elected and Appointed Officials Educational Fund.
When the Supreme Court reviews the Census Bureau’s proposed citizenship question, it will face the issue after extraordinary gaps in procedure. Because of deadlines for printing the census forms and other preparations, litigants have had to forgo appeals-court review and approach the justices without the benefit of the views of the U.S. Courts of Appeals for the 2nd and 9th Circuits.
Something else very important will be missing. In a case still awaiting the decision of Judge George Hazel of the U.S. District Court for the District of Maryland, the plaintiffs have advanced a claim that the Supreme Court will not rule upon — that racial animus motivated the decision to add the question, and it therefore violates the Fifth and 14th Amendments’ equal protection guarantee.
Though district courts in New York and California did not rule on Fifth and 14th Amendment claims, they did reach conclusions about the intent behind the Census Bureau’s and Commerce Department’s actions. Most recently, Judge Richard Seeborg of the U.S. District Court for the Northern District of California found that Voting Rights Act enforcement was “nothing more than a pretext designed to provide cover for the Secretary’s unexplained desire to add the citizenship question to the Census.” Although he could see that the stated rationale did not hold up under scrutiny, Seeborg did not opine about the actual motivation of administration officials in pursuing addition of the question through delays and around barriers over the course of several months.
Nonetheless, the case of the citizenship question helps to illustrate the paramount importance of federal courts’ addressing motivation and assigning legal significance to unsupported, inexplicable decision-making by government officials and agencies.
There is no end in sight to administration actions and decisions that have disproportionately and negatively affected underrepresented communities, which have suffered the indignities of discrimination throughout American history. Observers can trace a pattern in the administration’s “Muslim Ban” in Executive Order 13769; the termination of Deferred Action for Childhood Arrivals (DACA) and Temporary Protected Status or Deferred Enforced Departure for Salvadorans, Nicaraguans, Hondurans, Haitians, Sudanese, Nepalis and Liberians; and the prohibition on transgender military servicemembers. The pattern is sustained in lower-profile activities including rescission of guidance on affirmative action, revocation of provisions requiring government contractors to pay women fairly, and direction to agencies to find ways to limit or eliminate liability based on disparate impact on a disfavored group. By repeatedly singling out religious, national-origin, gender, and racial and ethnic minorities for exclusion or pointed non-protection, the Trump administration has opened itself to charges of acting with unconstitutional discriminatory intent.
Such intent, however, is difficult for jurisprudence to define and circumscribe, and litigation of the issue in the past decade has yielded uneven results. For example, when a member of the Colorado Civil Rights Commission compared religious objections against baking a cake for a same-sex wedding to religious justifications of slavery and the Holocaust, the Supreme Court identified an impermissible hostility to religion in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission. However, the same Supreme Court rejected the argument that statements by President Donald Trump and his advisors about the administration’s “Muslim Ban” showed religious animus, in Trump v. Hawaii. Both decisions overturned contrary lower-court determinations.
In another example of disagreement over the meaning of evidence of intentional discrimination, Judge Nicholas Garaufis of the U.S. District Court for the Eastern District of New York rejected a motion to dismiss an equal protection claim regarding the termination of the DACA program, concluding that derogatory presidential statements about Latinos and Mexicans were “sufficiently racially charged, recurring, and troubling as to raise a plausible inference that the decision to end the DACA program was substantially motivated by discriminatory animus.” On the other hand, Judge Roger Titus of the district of Maryland wrote, in CASA de Maryland v. Department of Homeland Security, dismissing a similar equal protection claim at summary judgment, that the decision to terminate the program did not “target … a subset of the immigrant population, and … [was not] derived on a racial animus…The Court rejects Plaintiffs’ reliance on the President’s misguided, inconsistent, and occasionally irrational comments made to the media to establish an ulterior motive.”
Observers would hope that, if the Supreme Court had an equal protection claim against the census citizenship question before it, it would recognize and comment upon some hallmarks of intentional discrimination in this case. In so doing, the court could help clarify the legal import of the surprising official words and actions that have become an issue in litigation of so many diverse matters.
First, the decision to add a census citizenship question fits squarely within a pattern of actions that have intimidated the target at hand: immigrants of color. Resources spent on immigration enforcement have increased exponentially as safeguards and discretion have been dismantled. To cite one of many examples, in 2018, then-Attorney General Jeff Sessions overturned longstanding immigration legal precedent to declare that people no longer qualified for asylum if they were fleeing domestic or gang violence that their home governments could not protect them from. Numerous decisions restraining immigration generally, and immigration from Latin America, Africa and Asia in particular, created a context of fear that experts in citizenship-question trials in New York, California and Maryland cited as a key reason for potentially serious harm from the question. Otherwise put, people are themselves strong proof that officials across administrative bodies are acting in consistent and repetitive ways – that is, with discriminatory intent – to single out immigrants of color for scrutiny, disapproval and prosecution. Certainly, immigrants of color have reasonably concluded that discrimination is occurring. The Census Bureau’s own 2018 focus groups, for example, yielded the observation that “even when presented with the Census Bureau’s promise of confidentiality, participants were suspicious that the promise would not be kept. Participants believed that the government will use and share individual-level rather than aggregate-level data.” One Spanish-speaking participant commented, “[Latinos will not participate] out of fear … [there] is practically a hunt [for us].”
Second, lies and obfuscation have pervaded the Commerce Department’s purported justification for its actions around the citizenship question. Appointed officials went to extraordinary lengths to conceal the details of the deliberations, which points strongly to the existence of embarrassing facts to hide, and discriminatory purpose is the most logical candidate. The records of the citizenship trials, and the decisions issued thus far, are rife with examples of deliberate less-than-truths. In one compelling, illustrative case, Commerce Department officials asked questions about the bureau’s initial analysis of the December 2017 letter requesting citizenship data. One of these queries sought information about the usual process for making changes to the decennial census questionnaire. Census Bureau Chief Scientist Dr. John Abowd and Acting Director Ron Jarmin subsequently testified that neither they nor, to their knowledge, any other Census Bureau employee had written or reviewed the answer as it appeared in the Commerce Department’s initial submission of documents for the record. Their testimony revealed that someone in a supervisory position had replaced the Census Bureau’s expert advice with substantially different information, then allowed the concocted answer to be presented as the work product of career census staff.
Third, official actions – like adoption of the citizenship question – that appear logically incomprehensible may only make sense in light of discriminatory intent. Courts can and should infer this intent when a pattern or practice reveals an inclination to single out disfavored populations, and when a decision that hurts a disfavored population has no other legitimate explanation. District courts appear to have found the justifications for the citizenship question that relate to the VRA especially unconvincing, given that the Department of Justice and private plaintiffs have successfully enforced the VRA for 54 years without such block-level citizenship data, and that the Census Bureau clearly and repeatedly told decisionmakers that they could get more accurate information at less cost from administrative data. The California court came closer to following this thought to its logical conclusion, noting, “Secretary Ross’s senior officials … all claim, rather implausibly, to be ignorant of why Secretary Ross wanted the citizenship question on the 2020 Census,” and observing that Commerce Department Director of Policy Earl Comstock testified that he did not “need to know what [the Secretary’s] rationale might be, because it may or may not be one that is … legally-valid.”
The absence of a credible rationale is not just the sign of arbitrary decision-making. In a high-stakes action that was always destined for intensive public scrutiny and likely court review, powerful officials would have offered plausible justifications if they could have. They would have stated their real purpose if it were defensible.
The courts should recognize that the incomprehensibility of the administration’s actions in Department of Commerce v. New York is evidence of unconstitutional discriminatory purpose, which, given the pattern established over the course of 2017 and 2018, is likely to recur again and again until the courts give it its true name and provide proper redress.
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