Lawyers for the Justice Department backtracked furiously Wednesday, saying they would examine whether the Trump administration may add a question on citizenship status to the census, just one day after DOJ officials and Commerce Secretary Wilbur Ross said they were abandoning those efforts for next year’s survey.
The reversal came after President Donald Trump threw the process into chaos, claiming his administration was “absolutely moving forward” with adding the contentious question, in direct contradiction to officials who said they will begin printing the decennial surveys without it.
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“The News Reports about the Department of Commerce dropping its quest to put the Citizenship Question on the Census is incorrect or, to state it differently, FAKE!” Trump tweeted on Wednesday. “We are absolutely moving forward, as we must, because of the importance of the answer to this question.”
U.S. District Court Judge George Hazel, expressing perplexity at the president’s tweet (“I’ve been told different things, and it’s becoming increasingly frustrating”), demanded by Friday at 2 p.m. a statement from the government that it will or will not have a citizenship question in the 2020 census. Hazel rejected a government request, citing the Fourth of July holiday, to delay the stipulation until next week.
It’s unclear exactly how the administration may move forward with the controversial question, which critics said would lead to a large undercount of noncitizens as well as Americans of Hispanic origin.
The Supreme Court dealt an unexpected blow to the effort last week, ruling that the official explanations for the move were implausible and legally inadequate.
With such little time before the launch of the 2020 census, Ross announced on Tuesday that the printed questionnaire would not include the citizenship query — a major defeat for the Trump administration.
Following Trump’s tweet Wednesday, plaintiffs in one of the lawsuits against the question led by the state of New York pressed for an “immediate” status conference with Justice Department attorneys and U.S. District Court Judge Jesse Furman to determine which course the government was taking.
In a court filing, state Attorney General Letitia James noted that Trump’s tweet “is not consistent with the representations Defendants’ counsel made to Plaintiffs and a federal court yesterday” and that “proceeding with a citizenship question at this point would violate this Court’s injunction.”
Separately, a Maryland judge overseeing a challenge to the question in federal court there convened a conference call with attorneys from both sides. Shortly after, Furman ordered the Trump administration to “promptly” clarify its intentions in writing following that call.
Assistant Attorney General Joseph Hunt told the court during the call that they had been instructed to “examine whether there is a path forward, consistent with the Supreme Court’s decision, that would allow us to include the citizenship question on the census,” according to a transcript.
“We think there may be a legally available path under the Supreme Court’s decision. We’re examining that, looking at near-term options to see whether that’s viable and possible,” Hunt said, adding that in that event the administration would look to the Supreme Court to bless its solution.
Hazel on Wednesday expressed confusion over the apparent reversal, as did DOJ attorney Joshua Gardner, who told the court that Trump’s tweet that morning “was the first I had heard of the President’s position on this issue.”
Gardneradded that “I can tell you that I have confirmed that the Census Bureau is continuing with the process of printing the questionnaire without a citizenship question, and that process has not stopped.” But he was later contradicted by Hunt.
“To back up, this is a very fluid situation which we are trying to get our arms around,” Gardner told the judge.
The plaintiffs in the Maryland case said Trump’s tweet showed that it’s necessary for the government either to agree publicly to counter misinformation regarding the citizenship question — or lack thereof — or be ordered to do so by the court.
“Today is a good example,” said Denise Hulett, a lawyer for the Mexican American Legal Defense and Educational Fund. “There was no response from the Commerce Department, that I know of, to counteract the position that was expressed” either in Trump’s tweet or in an interview he gave to Fox News earlier this week.
Asking if the plaintiffs were suggesting he had the authority to perhaps enjoin the president from tweeting about the citizenship question, Hazel remarked: “This is an odd place for the judiciary to be.”
While there’s a remote possibility that the citizenship question might resurface in a digital 2020 questionnaire later on, it is generally understood that the paper and digital forms must be the same.
Trump has been publicly agitated since the Supreme Court delivered the setback and previously claimed that he even may delay the census to make sure the citizenship question is included.
“Seems totally ridiculous that our government, and indeed Country, cannot ask a basic question of Citizenship in a very expensive, detailed and important Census, in this case for 2020,” Trump tweeted last week. “I have asked the lawyers if they can delay the Census, no matter how long, until the United States Supreme Court is given additional information from which it can make a final and decisive decision on this very critical matter.”
Despite Ross’ announcement that the census would move forward without the citizenship question, House Democrats are continuing their scrutiny of the issue.
Rep. Jamie Raskin, chairman of the House Oversight Subcommittee on Civil Rights and Civil Liberties, announced on Wednesday that Census Bureau Director Steven Dillingham would testify before his panel on July 24.