Following a morning about-face from President Donald Trump, Justice Department lawyers told a federal judge Wednesday that they have been ordered to continue trying to place a question about citizenship on 2020 U.S. Census questionnaires.
Joseph Hunt, Assistant Attorney General for the Civil Division, told Judge George Hazel in an afternoon teleconference that the DOJ has ‘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,’ Hunt said, calling the situation ‘very fluid.’
Democrats have complained that asking U.S. residents if they are citizens would discourage illegal immigrants and other non-Americans from participating, resulting in a less accurate head-count.
That, they say, would unfairly change the makeup of the House of Representatives and the Electoral College, and deny federal funding to minority-heavy regions that are more likely to house illegal immigrants.
The Trump administration waved a white flag of surrender Tuesday in a battle over whether to ask U.S. residents if they are American citizens when census-takers collect data in 2020, but the president did a 180-degree turn on Wednesday, blindsiding the Justice Department
In a hotly anticipated decision last week, the Supreme Court ruled that Commerce Secretary Wilbur Ross had lied about why he wanted to determine the size and distribution of America’s citizen population.
While Ross had claimed the Justice Department asked for the data in order to better enforce the Voting Rights Act, he had asked them to make that request for partisan political reasons.
The justices sent the case back to a Hazel’s court and invited the Trump administration to argue about whether Ross’s real reasons were justified.
But the clock continued to tick and census questionnaires were not being printed – a situation that jeopardized the Census Bureau’s ability to deliver its results before a deadline set by the U.S. Constitution.
The Justice Department had conceded Tuesday that the government’s once-a-decade census questionnaire would not try to determine who is and is not a U.S. citizen, angering the president shortly after his return from a G20 leaders summit in Japan.
Ross tweeted his cry of uncle an hour later, saying the Census Bureau had ‘started the process of printing the decennial questionnaires without the question.’ But Trump changed the situation with a Wednesday morning tweet – and sent word that the DOJ shouldn’t wave a white flag.
‘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
Census forms needed to be printed so the Trump administration decided to concede defeat rater than risk running afoul of the U.S. Constitution; that lasted less than a day
The president tweeted that the Commerce Department’s ‘quest’ for get a citizenship question on the census questionnaire is alive and well
The turnabout surprised Judge Hazel and lawyers for both the government and plaintiff’s groups who are seeking to stop the Commerce Department from adding the question for the first time since 1950.
‘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,’ DOJ attorney Joshua Gardner told the judge.
But Hazel conceded his powers were limited.
‘I assume, although maybe I’m wrong about this, that the parties aren’t suggesting I can enjoin the President of the United States from tweeting things,’ he said.
While Gardner said he wasn’t clear what might happen next, he added that the Census Bureau ‘is continuing with the process of printing the questionnaire without a citizenship question, and that process has not stopped.’
Denise Hulett, an attorney for the Mexican American Legal Defense and Educational Fund, complained that Trump’s morning tweet had ‘some of the
same effects that the addition of the [citizenship] question would.’
‘It leaves the immigrant communities to believe that the government is still after information that could endanger them,’ she said.
Judge Hazel set a 2:00 p.m. Friday deadline for the government and plaintiff’s lawyers to agree on a path forward.
Hazel marveled at how the president contradicted his own Justice Department, hours after it had agreed to stand down.
‘I’ve been told different things, and it’s becoming increasingly frustrating,’ he said.
‘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.’
A former Obama White House lawyer had released an email Tuesday from a different Justice Department trial attorney who appeared to surrender to liberal groups who opposed the census plan in court.
That appeared by Wednesday to have been premature.
Trump had said as recently as Monday that he was looking for lawful ways to delay the census, a constitutionally mandated process, so the DOJ could explore ways to reverse the Supreme Court decision that spelled defeat last week.
But DOJ lawyer Kate Bailey wrote to plaintiff’s lawyers 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.’
‘We won,’ attorney Daniel Jacobson gloated. He represented plaintiffs who sued the federal government in New York, one of 17 places from which court battles converged on the Supreme Court’s steps.
Trump said Tuesday night that he has ‘asked the Department of Commerce and the Department of Justice to do whatever is necessary to bring this most vital of questions’
‘Nobody can believe this, but they spend billions of dollars on the census, and you’re not allowed to ask?’ Trump asked reporters at the White House on Monday.
‘You don’t knock on doors of houses, check houses? You go through all this detail and you’re not allowed to ask whether or not somebody is a citizen? So you can ask other things, but you can’t ask whether or not somebody is a citizen?’
‘I think it’s very important to find out if somebody is a citizen,’ he said, ‘as opposed to an illegal [immigrant]. I think there’s a big difference, to me,’ he said.
Democrats continued Wednesday to stomp on the White House.
‘The exclusion of the citizenship question from the census is a victory for our democracy and for fair representation of all communities in this country,’ Senate Minority Leader Chuck Schumer, a New York Demorcat, said Tuesday.
‘The Trump administration’s politically-motivated efforts to undermine the Constitution in this instance were so reprehensible that even the conservative Supreme Court couldn’t let them get away with it.’
Immigration activists aligned with the far-left group People for the American Way gathered outside the U.S. Supreme Court last Thursday; the American Civil Liberties Union and other liberal organizations pushed back against the Census Bureau and prevailed
Chief Justice John Roberts wrote the majority opinion, siding with the Supreme Court’s liberal wing in a smackdown to Commerce Secretary Wilbur Ross and President Donald Trump
The justices slapped down Ross’s effort to add the citizenship question to the 2020 census, saying he lied in his explanation of why it should be restored for the first time since 1950; he said he disagreed with the decision but will abide by it
Ross, whose agency runs the census, said Tuesday that ‘I respect the Supreme Court but strongly disagree with its ruling regarding my decision to reinstate a citizenship question on the 2020 Census.’
‘The Census Bureau has started the process of printing the decennial questionnaires without the question. My focus, and that of the Bureau and the entire Department is to conduct a complete and accurate census,’ he said.
Trump had sought more time to deal with the ramifications of the high-court setback, a ruling that found Ross provided a phony answer about why the 2020 Census should establish how many citizens are living in the country.
Ross has the power to make reasonable decisions about what to ask in the census and why, the justices ruled. But given his deception, a lower court would have to reopen the question of whether his argument is sound.
‘Altogether, the evidence tells a story that does not match the explanation the secretary gave for his decision,’ Chief Justice John Roberts wrote.
The resulting delay, the administration warned last week, would stymie its efforts because census forms would have to be printed soon in order for the agency to meet its constitutionally mandated deadlines.
The Supreme Court’s ruling on Thursday appeared to shift the census-citizenship debate back to a lower court, prompting Trump to say he would stall for time; but ultimately his administration decided to back down
The U.S. Constitution requires a count of the American population every decade – specifically, ‘within every subsequent Term of ten Years’ from the previous census.
Ross argued that knowing how many citizens are in the country, and where they live, is necessary to enforce portions of the Voting rights Act.
Roberts wrote in the Supreme Court majority decision that ‘the decision to reinstate a citizenship question cannot adequately be explained in terms of DOJ’s request for improved citizenship data to better enforce the VRA.’
Ross, the court found, ‘began taking steps to reinstate the [citizenship] question a week into his tenure, but gives no hint that he was considering VRA enforcement.’
And while government agencies can have ‘both stated and unstated reasons’ for making decisions, the justices ruled, ‘the VRA enforcement rationale—the sole stated reason—seems to have been contrived.’
Ross said in congressional testimony that a letter from the Justice Department, asking for citizenship data to enforce the VRA, gave him the idea to put it back in the Census.
But he admitted later that he had been considering it since barely a week after taking office in January 2017 – and that he suggested the Justice Department should formally ask him about it.
The American Civil Liberties Union told a court in April that it had found an unpublished paper from a Republican Party adviser, arguing that the real goal of a citizenship question was to dilute minorities’ voting power.
The Justice Department said none of its officials in the chain of command related to the VRA had ever seen the paper.