In the second reversal in a single week, the Trump administration announced that it is still exploring possible ways to include a citizenship question on the 2020 census.
The Justice Department made the announcement Wednesday shortly after President Trump blasted “FAKE” reports that his administration had given up on litigating the issue. Trump’s tweet came one day after administration officials announced that the White House would abandon attempts to include the question following an unfavorable ruling from the Supreme Court last week.
“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,” Trump asserted.
Course correction
In a surprising turn of events, the Trump administration said Wednesday that the White House would not give up on fighting for the controversial citizenship question. An assistant attorney general for the DOJ, Joseph Hunt, said that the department 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.”
“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 during a phone conference with a judge presiding over two lawsuits over the question in Maryland.
The administration’s adjustment was revealed during a last-minute call with U.S District Judge George Hazel, who ordered a conference with lawyers after seeing Trump’s tweets Wednesday. Judge Hazel has given the administration until Friday to say that they will not press forward with seeking the question. If the Trump administration does not agree to desist, Hazel will move on two separate lawsuits against the citizenship question alleging conspiracy and discriminatory intent by the Trump administration.
A cave, then a reversal
Days after the Supreme Court shot down the census question, the Justice Department said Tuesday that it would no longer pursue the citizenship question, ending a bitter legal battle that went all the way to the Supreme Court. Justice Department attorney Kate Bailey and Commerce Secretary Wilbur Ross both confirmed that the Trump administration would move ahead with the surveys without asking the question.
“We can confirm that the decision ahs 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,” Bailey wrote in an email.
The Supreme Court decided in a 5-4 decision last week against including the question. Swing justice John Roberts sided with the liberals in striking it down.
Ross said, “I respect the Supreme Court but strongly disagree with its ruling regarding my decision to reinstate a citizenship question on the 2020 census.” He went on to add, “My focus, and that of the Bureau and the entire Department is to conduct a complete and accurate census.”
Defeat?
President Trump floated the possibility of delaying the census, completed every 10 years, after the Supreme Court scuttled inclusion of the question last week. But time was short, as the printing of the spring census was scheduled to begin this month. The Trump administration had used the looming deadline to argue in favor of quickly including the question on the census.
The president decried the court’s decision to block the question last week, calling it an “utterly sad time for America” and adding that he would direct the DOJ and Commerce Department to pursue the issue. The conclusion of the closely-watched case came shortly after the Supreme Court handed Republicans a victory in a case on gerrymandering.
Liberals have argued that the census would discourage Latinos from filling out the forms, resulting in an undercount of immigrants. The Trump administration asserted that the forms were necessary to enforce the Voting Rights Act, but the Supreme Court rejected that argument as “contrived” and said the Commerce Department could try again, but must provide a different argument.
Outside of court, Republicans have argued quite simply that Americans have a right to know who is and isn’t a citizen, and that failure to include the question would unfairly benefit urban, liberal areas where illegal immigrants are concentrated. The census is used to delineate congressional districts, apportion the number of representatives in each state, and allocate federal funding.
Roberts provoked the ire of Trump and Republican allies for siding with the liberals in the 5-4 decision. The chief justice, who assumed the role of swing judge after Anthony Kennedy retired, has been at pains to uphold a perception that the court is not political, but some conservatives think he is squandering the court’s new conservative majority, solidified by President Trump with the addition of Neil Gorsuch and Brett Kavanaugh.
It’s still not clear how this will end up, but it’s good that Trump refused to cave.
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