Justice Department to tell court it is looking at options to add citizenship question to census
Lawyers for the Department of Justice plan to tell a federal judge in Maryland Friday afternoon that the Trump administration will continue to explore options of adding a citizenship question to the 2020 census, according to an administration official familiar with the plans.
The official stressed that as of now the census will be printed without the citizenship question.
Earlier Friday, President Donald Trump said he is considering his options which include a potential executive order, or an addendum to the questionnaire that would allow the question to be added at a later date. Such a move could require the administration to provide a new justification for the addition of the question, following a Supreme Court ruling requiring a new rationale.
The move by the Justice Department would mean that the administration will face daunting legal challenges and a tenuous timeline. Judge George Hazel in Maryland had told the Justice Department that if the administration refused to definitively say it will not add a citizenship question to the census, he would establish a schedule to hear new evidence over the next 45 days. A parallel proceeding will continue in New York as well.
Growing frustrated at his administration’s handling of a citizenship question on the census, Trump has been encouraging his lawyers and aides to find a way to include the disputed item before an afternoon court deadline — even exploring whether to issue an executive order on the issue.
“It’s one of the ways — we have four or five ways we can do it,” Trump told reporters earlier Friday on the White House lawn. “It’s one of the ways that we’re thinking about doing it very seriously.”
A legal adviser who has been involved with the discussions over the last several days with Trump administration officials on the citizenship question said that while the Trump administration is considering its options to add a citizenship question to the census, administration lawyers are drafting potential language for an executive order. The source stressed that other options are on the table, but that some outside advisers believe that an executive order could pass legal muster.
Earlier this week an administration official called that option unrealistic, but others are pushing for that option.
“I believe the Supreme Court will affirm the constitutional right of the President and commerce secretary to add the citizenship question to the 2020 census, in a 5-4 opinion authored by the chief justice of the United States,” said J. Michael Luttig a former judge who has close ties to top players in the administration.
But critics say courts would be unlikely to agree. They contend that while the Census Act vests power in the commerce secretary to administer the census, the President has no constitutional authority to modify it.
The White House said late Thursday that the President was “looking at every option.”
Trump threw the situation into disorder earlier this week when he tweeted he wouldn’t give up the battle even after his Commerce Secretary Wilbur Ross announced the census forms would be printed without the question — a move the President signed off on earlier in the week. The internal dispute has led the President to privately air frustrations at his 81-year-old commerce secretary.
Trump has been frustrated at Ross’s handling of the census issue, according to two people with knowledge of the situation, believing he folded too easily after the Supreme Court ruled on the matter this week.
His frustrations with his commerce secretary started before the high court decision, believing the issue has been mishandled from the start. But in recent days he’s told allies that Ross let him down.
At this point it does not appear that Ross will be dismissed, the two people said. But in speaking with advisers, Trump has bemoaned the Commerce Department and the Justice Department for “giving up,” according to the people.
He has said that all of his options weren’t explored before the announcement earlier this week that the printing would go forward.
The legal adviser who has been involved with the discussions says that when the Department of Justice went forward earlier in the week to say that a citizenship question would not be added to the census, the department got “ahead of itself.” The source acknowledges that the White House was informed in some form of what DOJ lawyers would argue, but said that there was not “adequate communication.”
The President remains in contact with outside advisers and is frustrated that the DOJ seemed to be throwing in the towel and has complained that Chief Justice John Roberts should be responsible for the failure to get the question on the census, not the President, according to the source. A continued legal effort, the source contended, might “force” Roberts to make a decision.
Trump has aired frustrations at Ross previously. Early in the administration, Trump kept berating him for his handling of China trade talks. He also complained that he fell asleep in meetings. But he’s remained on good personal terms with his longtime friend.
Trump has said publicly that asking census-takers their citizenship status should be a no-brainer. But opponents say it could deter minorities and immigrants, even those in the United States legally, from taking the survey. That, in turn, could skew electoral maps in favor of Republicans and reduce government assistance programs for some communities.
Administration lawyers were hurrying Friday to prepare for an afternoon deadline to explain how they will proceed in adding the disputed question about citizenship to the 2020 census.
Trump is facing “limited options,” according to a person familiar with the matter, that include a potential executive order or adding the question as a supplement with the upcoming census forms, which are already being printed.
Trump tweeted early Thursday that officials were working on the Independence Day holiday to resolve the issue ahead of a 2 p.m. ET Friday court deadline to explain what the government plans to do.
“Department of Commerce and the Department of Justice are working very hard on this, even on the 4th of July!” the President wrote, before departing the White House for his Virginia golf club.
Trump’s seemingly out-of-the-blue tweet on Wednesday reversing the administration’s stance came as a surprise to the government lawyers tasked with arguing the case.
There was initially consensus among the White House and other top administration officials over the position the Justice Department would take — that it would go ahead with preparing the census without a line asking “Is this person a citizen of the United States?”
But Trump changed his mind after a hearing Tuesday, according to a source familiar with discussions. Top Justice Department officials, including Attorney General Bill Barr, became aware of the pivot before Trump tweeted about it, but lower level attorneys at the Justice Department, including the lawyers who were due in front of a federal judge in Maryland on Wednesday, were not aware of the shift.
The legal adviser who has been involved with the discussions with the Trump administration officials told CNN the President is committed to showing leadership on the issue, adding “The President has made clear he wants to fight.”