President Donald Trump said Friday he may issue an executive order requiring a citizenship question on the 2020 census, a move contrary to a Supreme Court ruling last week and one certain to bring more legal challenges.
Trump also said he has “four or five options” as his lawyers look to deal with a Supreme Court decision released June 27 that blocked the citizenship question on the census.
“We’re looking at a lot of things, including an executive order,” Trump said.
Any move Trump makes to reinstitute the question will surely be challenged in court by organizations who say the administration is deliberately trying to undercount minorities.
Trump spoke shortly before U.S. District Judge George Hazel said plaintiffs can begin gathering evidence in a case accusing the government of engaging in racial discrimination in seeking to attach a citizenship question to the census.
Justice Department attorneys had sought to delay that step, telling Hazel that they are still deciding how to proceed. Hazel had asked the government to explain its position after Trump tweeted Wednesday he was “moving forward” with a citizenship question, despite the adverse decision by the Supreme Court.
2020 census: Trump administration begins printing 2020 census without citizenship question, signaling end of court battle
In a Friday filing, government lawyers said “the Departments of Commerce and Justice have been instructed to examine whether there is a path forward, consistent with the Supreme Court’s decision, that would allow for the inclusion of the citizenship question on the census.”
In its ruling last week, the Supreme Court said the administration had not justified its position, and it sent the matter back to the Commerce Department. The administration could come up with a new justification and re-litigate the issue, but that could take months.
On Tuesday, administration officials had indicated they planned to drop the entire matter and print the census without a citizenship question.
Then came Trump’s tweet on 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!” Trump said. “We are absolutely moving forward, as we must, because of the importance of the answer to this question.”
Groups that had sued the government over the citizenship question said the Trump administration is simply trying to evade the Supreme Court decision. In a case decided by a 5-4 vote, Chief Justice John Roberts said he did not find the administration’s justification for the question to be credible.
Asking a census respondent whether or not he or she is a citizen will pressure many people into not responding, these groups said. They accused the Trump administration of seeking an undercount that will affect, among other issues, the allocation of federal funds and the drawing of boundaries for congressional districts.
Citizenship question: Justice Department looking for way to include citizenship question in census despite Supreme Court ruling
“Even after being called out by federal courts including the Supreme Court for lying about their census scheme, @realDonaldTrump’s admin is still trying to undercount people of color & minority communities in the 2020 census,” tweeted Sen. Charles Schumer, D-N.Y. “Reprehensible & unconstitutional. Everyone must count.”
Trump and aides said the government is entitled to know who is a citizen and who isn’t.
On Friday, Trump also raised the issue of congressional district lines in defending his desire for a citizenship question.
“You need it for Congress for districting, you need it for appropriations, where are the funds going, how many people are there, are they citizens or not citizens?” Trump said. “You need it for many reasons.”
Congressional districts, however, are drawn based on total population, not the number of U.S. citizens. Legal opponents said the Trump administration is looking for ways to help Republicans draw districts more favorable to them.
If there is a renewed battle, Trump said, the government could start printing census forms now, and add a citizenship question later if it prevails.
Trump and his allies said Roberts left the door open for a re-hearing of the case. Roberts wrote that he was dissatisfied with the administration’s stated reason for including the census question, not the idea of the question itself.
“Essentially, he said, ‘come back,’” Trump said. “We’ll see what happens.”
Administration lawyers had said the government needs to know the number of U.S. citizens to help it prepare cases under the Voting Rights Act. The Trump administration has yet to file a voting rights case.
Now Trump allies say the administration should offer a different reason and find a way to resubmit the case.
Opponents said Trump and his supporters are grasping in vain, and that any new rationale at this point will look contrived.
Thomas A. Saenz, president and general counsel of the Mexican American Legal Defense and Educational Fund, also derided the idea of an executive order on the citizenship question.
“Executive orders do not override decisions of the Supreme Court,” he said. “Separation of powers remains, as it has been for over 200 years, a critical part of our constitutional scheme.”
Attorneys also noted that Roberts’ opinion cast doubt on whether the president has the legal authority to issue an executive order on the census. He wrote: “The taking of the census is not one of those areas traditionally committed to agency discretion.”