By Lawrence Hurley
WASHINGTON (Reuters) – President Donald Trump said on Wednesday he was moving ahead with adding a contentious citizenship question to the 2020 U.S. census in a dramatic reversal after his own administration including Commerce Secretary Wilbur Ross announced a day earlier that the plan had been dropped.
Following Trump’s announcement, made in a defiant Twitter post, a senior U.S. Justice Department lawyer told a Maryland-based federal judge overseeing litigation in the matter that the administration was seeking a “path forward” to add a citizenship question after the Supreme Court last Thursday blocked it, at least temporarily.
The Supreme Court found that administration officials had given a “contrived” rationale for including the query in the decennial population survey, but the court left open the possibility the administration could offer a plausible rationale.
Facing a deadline to get the census forms printed, administration officials including Ross said on Tuesday they were going ahead without including the question.
Critics have called the citizenship question a Republican ploy to scare immigrants into not taking part in the census and engineer a population undercount in Democratic-leaning areas with high immigrant and Latino populations. That would benefit non-Hispanic whites and help Trump’s fellow Republicans gain seats in the U.S. House of Representatives and state legislatures when new electoral district boundaries are drawn after the census, the critics said.
“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 wrote on Twitter.
The census will continue to be printed without the citizenship question while the administration re-evaluates all options to see if it could win a new lower court decision that would permit it to add the question, according to a person familiar with the administration’s thinking.
Trump’s hardline policies on immigration have been a key element of his presidency and 2020 re-election campaign. Trump last Thursday also said he was exploring whether the census, which the U.S. Constitution requires be carried out every 10 years, can be delayed.
“We at the Department of Justice have been instructed to examine whether there is a path forward consistent with the Supreme Court decision that would allow us to include the citizenship question on the census,” Assistant Attorney General Joseph Hunt told Maryland-based U.S. District Court Judge George Hazel on Wednesday, according to a court transcript obtained by Reuters.
Hunt did not make clear who issued the instruction.
The Justice Department on Tuesday had told Hazel that the administration had made a final decision not to proceed with the citizenship question, according to two lawyers involved in the litigation. The judge then held a call with lawyers in the case after Trump’s Wednesday announcement.
“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.
Hazel said he wants a final response by Friday afternoon on whether the government will press ahead with adding the citizenship question. Otherwise, legal claims accusing administration officials of being motivated by racial bias in adding the citizenship question will move forward.
Hazel refused to allow the government more time to respond.
“If you were Facebook and an attorney for Facebook told me one thing, and then I read a press release from (Facebook Chief Executive) 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,” Hazel said.
Hazel indicated regret that he “hadn’t gone far enough in terms of pinning the government down on where things stand,” during the previous call on Tuesday.
Manhattan-based U.S. District Judge Jesse Furman, presiding over a similar case, also pressed administration lawyers for an explanation.
‘CHAOS AND CONFUSION’
Opponents of the question condemned Trump’s announcement.
“Another day, another attempt to sow chaos and confusion,” New York’s Democratic Attorney General Letitia James, who is involved in the legal challenge, said. “The Supreme Court of the United States has spoken, and Trump’s own Commerce Department has spoken. It’s time to move forward to ensure every person in the country is counted.”
Ross, a key figure in the controversy, had said in a statement on Tuesday, “The Census Bureau has started the process of printing the decennial questionnaires without the question.” A Justice Department lawyer told Hazel that this printing in fact was continuing.
Trump’s administration had told the courts that its rationale for adding the question was to better enforce a law that protects the voting rights of racial minorities. Critics called that rationale a pretext for partisan motives.
The Supreme Court’s ruling had left open the possibility of Trump adding the question in the future with a new rationale, an outcome that seemed unlikely because administration officials had said in court filings that they needed to finalize the details of the census questionnaire by the end of June.
The American Civil Liberties Union (ACLU), which was part of the Supreme Court lawsuit, said any new rationale would not pass legal muster. “Any attempt at an end run around the Supreme Court’s decision will be unsuccessful, and will be met swiftly in court,” Dale Ho, director of the ACLU’s Voting Rights Project, said in a statement.
The census is used to allot seats in the U.S. House and distribute some $800 billion in federal funds. Opponents have said a citizenship question would instill fear in immigrant households that the information would be shared with law enforcement, deterring them from taking part.
Citizenship status has not been asked of all households since the 1950 census. Since then, it has been included only on questionnaires sent to a smaller subset of the population.
A group of states including New York and immigrant rights organizations challenged the legality of the citizenship question. Hazel, Furman and a third judge all issued rulings blocking the question, prompting the administration’s Supreme Court appeal.
(Reporting by Lawrence Hurley; Additional reporting by Sarah N. Lynch, Makini Brice, Nick Brown and Lauren LaCapra; Editing by Will Dunham and Richard Chang)