The Trump administration has not yet given up on adding a question about citizenship to the 2020 census, even though the process of printing the forms is underway and the Justice and Commerce departments have already conceded defeat.
In one of a few legal cases related to the citizenship question, Judge George Hazel of the U.S. District Court for the District of Maryland set up a conference call in response to a tweet from President Trump disputing the case was closed, during which a DOJ lawyer said they have received instructions from the White House to find a way around a Supreme Court ruling.
“We at the Department of Justice have 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. 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,” said Jody Hunt, assistant attorney general for the Civil Division.
Hunt said their plan is to file a motion in the Supreme Court to “request instructions on remand to govern further proceedings in order to simplify and expedite the remaining litigation and provide clarity to the process going forward.”
It had appeared the Commerce Department’s efforts to add a citizenship question to the census were over after a Supreme Court loss. In a 5-4 decision, with Chief Justice John Roberts authoring the court’s opinion, the Supreme Court effectively blocked the question from inclusion on the 2020 questionnaire, citing the government’s rationale for inducing it — enforcing voting rights — as “contrived.”
Commerce Secretary Wilbur Ross said in a Tuesday statement that the Census Bureau would move forward with printing the surveys and DOJ attorney Kate Bailey notified the plaintiffs in the case that she could “confirm that the decision has been made to print the 2020 Decennial Census questionnaire without a citizenship question, and that the printer has been instructed to begin the printing process.”
Trump condemned the Supreme Court ruling over Twitter Tuesday night. He said that he was directing the Commerce and Justice departments to look into the matter, though he didn’t offer specifics. “A very sad time for America when the Supreme Court of the United States won’t allow a question of ‘Is this person a Citizen of the United States?’ to be asked on the #2020 Census! Going on for a long time. I have asked the Department of Commerce and the Department of Justice to do whatever is necessary to bring this most vital of questions, and this very important case, to a successful conclusion. USA! USA! USA!” Trump said.
Trump’s tweet was met with immediate backlash from the Mexican American Legal Defense and Educational Fund, which is representing the plaintiffs in the Maryland case. “We are outraged at Trump’s tweet,” said MALDEF lawyer Denise Hulett. “The Census Bureau must immediately commit to counteract his statements with the truth — that the citizenship question will not be on the census.”
Trump sent another tweet Wednesday morning. “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! We are absolutely moving forward, as we must, because of the importance of the answer to this question,” he said.
The tweet led to call for status updates in multiple cases pertaining to the citizenship question. In the conference call for the Maryland case, Justice Department attorney Josh Gardner admitted Trump’s morning tweet was the first he had heard of it.
“The tweet this morning was the first I had heard of the President’s position on this issue, just like the plaintiffs and Your Honor. I do not have a deeper understanding of what that means at this juncture other than what the President has tweeted. But, obviously, as you can imagine, I am doing my absolute best to figure out what’s going on,” Gardner said.
Gardner also said he confirmed the Census Bureau is continuing with the process of printing the questionnaire without a citizenship question.
Hazel, an Obama appointee, expressed his frustration with Trump. “If you were Facebook and an attorney for Facebook told me one thing, and then I read a press release from Mark Zuckerberg telling me something else, I would be demanding that Mark Zuckerberg appear in court with you the next time because I would be saying I don’t think you speak for your client anymore,” he said, according to the conference call transcript.
“I think I’m actually being really reasonable here and just saying I need a final answer by Friday at 2 p.m. or we’re going forward. That’s where we are. Because we’ve wasted a week. The Fourth Circuit sent this back to me with a promise from me that I would get it done, the discovery done in 45 days, a hearing, and then a decision, and they sent it back to me with that promise having been made. And we’ve lost seven days already with the back and forth, which, again, I don’t blame anybody on this call for, but that’s where we are. So Friday, 2 p.m., we’re going forward or we’re resolving it. That’s where we are,” Hazel said.
