The Trump administration confirmed Friday that it will press forward with efforts to add a citizenship question to next year’s census, with President Donald Trump saying he’s exploring the possibility of reviving the question via executive order and government lawyers telling a federal judge that they’ve “been asked to reevaluate all available options.”
“We’re thinking about doing that. It’s one of the ways,” Trump said of the prospective executive order as he prepared to depart the White House for his New Jersey golf club. “We have four or five ways we could do it. It’s one of the ways and we’re thinking about doing it very seriously.”
Story Continued Below
The Trump administration’s plans to add such a question to the decennial census were dealt a surprise blow last week by the Supreme Court, which ruled that the Trump administration’s “explanation for agency action” was “incongruent with what the record reveals about the agency’s priorities and decison making process” and ordered government lawyers to present a more truthful explanation to a lower court. Chief Justice John Roberts, siding with the court’s four liberals, wrote the majority opinion.
In a court filing Friday, lawyers for the Justice Department confirmed that both DOJ and the Commerce Department were still weighing “whether the Supreme Court’s decision would allow for a new decision to include the citizenship question.” The filing reiterated what the lawyers told U.S. District Court Judge George Hazel Wednesday, after the president contradicted the government’s earlier assertion that it would drop efforts to include the question on next year’s survey.
When Commerce Secretary Wilbur Ross formally added the citizenship question last year, he said the information was needed to assist the Justice Department with enforcement of the Voting Rights Act.
But civil rights groups, Democratic-led state governments, and lower court judges said DOJ had expressed little interest in that data before or after it backed Ross’s move. Experts said adding the question would decrease the accuracy of voting-age citizen data because the query would lead a substantial number of people to avoid the entire survey.
The Supreme Court majority agreed that the administration’s stated reason was not believable, with Roberts saying it appeared “contrived” and “a distraction.”
Trump came close to admitting as much when he was asked Friday why he believed the question was needed. “You need it for many reasons,” the president responded. “Number one, you need it for Congress, you need it for Congress, for districting. You need it for appropriations — where are the funds going? How many people are there? Are they citizens or are they not citizens?”
The Constitution states that apportionment for congressional seats be based on “persons” — not citizens. Trump’s statement could be seen as bolstering the claims of opponents of the question that the administration’s true purpose in adding the question is to diminish the political power of Latinos and other immigrants, who tend to reside in areas represented by Democrats.
Acting director of U.S. Customs and Immigration Services Ken Cuccinelli on Friday also appeared to undermine the administration’s earlier justifications for the question.
“Frankly, as part of the ongoing debate over how we deal financially and legally with the burden of those who are not here legally,” he said on Fox Business in a defense of why the question was necessary, calling it “a relevant issue.”
The Justice Department announced after last week’s Supreme Court decision that census forms would be printed without the citizenship question, a position backed up as late as Tuesday night by Commerce Secretary Wilbur Ross, whose department oversees the census. But those announcements were rendered moot Wednesday by the president, who declared via Twitter that his administration would continue fighting to include the question.
“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!” the president wrote online, adding that “We are absolutely moving forward, as we must, because of the importance of the answer to this question.”
Opponents of the question’s inclusion have argued it could result in a severe undercount of immigrants, resulting in less federal funding or diluted congressional representation in the immigrant-dense communities that traditionally skew Democratic.
Jody Hunt, assistant attorney general for the DOJ’s civil division, told Hazel on Wednesday in a hastily arranged conference 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,” adding that the administration thought there may still be a “legally viable path” that would appease the Supreme Court decision.
On Wednesday evening, Hazel ordered the government to spell out its intentions regarding the citizenship question by 2 p.m. Friday. Today’s filing fell well short of that command, repeating the same uncertainties that frustrated Hazel Wednesday and urging the judge to bar plaintiffs in the case from proceeding with discovery.
The government said again Friday that in the event it “adopts a new rationale” for including the question, it plans to go straight to the Supreme Court to bless its solution and seek guidance for how to deal with the lower court cases — including whether the Trump administration intended to discriminate against minorities in asking the citizenship question.
Hazel disagreed, ordering discovery may proceed according to a schedule proposed by the challengers. “Plaintiffs’ remaining claims are based on the premise that the genesis of the citizenship question was steeped in discriminatory motive,” Hazel wrote, and new documents discovered that relate to that question may speak “directly to that issue.”
“Regardless of the justification defendants may now find for a ‘new’ decision, discovery related to the origins of the question will remain relevant. Given that time is of the essence, therefore, the prudent course is to proceed,” Hazel wrote.
U.S. District Court Judge Jesse Furman, who oversaw a separate challenge to the citizenship question in New York and fielded demands for a status hearing by the plaintiffs in that case, said Friday morning he would wait to see how the Trump administration responded to Hazel’s order.
Although Roberts ruled against the administration, the chief justice left the door open for the government to present a less “contrived” rationale for reintroducing the question. It’s unclear whether an executive order would meet that standard.
There is also some question whether Trump has the authority to order up the citizenship question unilaterally, as the decennial census is established in the Constitution under Article I, which governs Congress.
Trump on Friday said that he has “a lot of respect” for Roberts, with whom he’s sparred in the past, and noted that the chief justice “essentially … said come back.”
Time is of the essence for the census officials, a fact that has bolstered civil rights groups and state and local governments that challenged the citizenship question. The Trump administration underscored repeatedly in legal proceedings that the Census Bureau needed to begin printing questionnaires by July in order to make printing deadlines for the 2020 survey.
But Trump suggested that his administration could work around that, telling reporters that with a ruling in his favor from the Supreme Court, the Census Bureau could print the question on an addendum to the full survey.
“We can also add an addition on, so we can start the printing now and maybe do an addendum after we get a positive decision,” he said. “So we’re working on a lot of things including an executive order.”
Notably, Friday’s affirmation from the government that it was still searching for a way to include the question provided no timeline for its next move or mention of a possible executive order.
Trump also indicated that he was being kept in the loop about the paths to re-introducing the question after the chaos of a few days ago. “I just spoke to the attorney general. We have a number of different avenues. We can use all of them or one,” he said, before bemoaning the massive price tag for the decennial survey.
“We’re spending $15-20 billion on a census. We’re doing everything. We’re finding out everything about everybody. … $15-20 billion and you aren’t allowed to ask them are you a citizen?” he asked incredulously.