Overruling two of his Cabinet departments, President Trump demanded on Wednesday that everyone in America be asked about their citizenship as part of the 2020 census. Less than 24 hours after his Administration had declared that the controversy was over, with census forms going to the printers without that question, the President used a tweet to reopen the issue.
The move clearly sent a wave of surprise across the federal government. In a telephone conference call at mid-afternoon Wednesday, Justice Department lawyer Joshua Gardner commented candidly to a federal judge in Maryland: “Obviously, as you can imagine, I am doing my absolute best to figure out what’s going on.”
Later in the day, a higher-ranking Department official, Assistant Attorney General Joseph H. Hunt, said in a letter to a different federal judge (in New York) that officials may return to the Supreme Court for direction on what to do next, if they can come up with “any path for including such a question.”
Last Thursday, the Supreme Court rejected the reason that Administration officials had given for their plan to ask about citizenship, declaring that to be “contrived,” and told them to reconsider. Hunt’s letter said that the Justice and Commerce Departments – the two agencies that had decided Tuesday evening not to press further on the citizenship issue – “have now been asked to reevaluate all available options following the Supreme Court decision.”
The letter did not say who had ordered the new review of options, but it was obvious from the presidential tweet earlier Wednesday. The President wrote on his Twitter account that news stories saying that the citizenship question had been dropped were “FAKE!” The tweet added: “We are absolutely moving forward, as we must, because of the importance of the answer to the question.”
The Supreme Court decision did leave the Administration with some room to look for a different rationale for asking about citizenship. Its opinion said that it was not ruling that the question would be illegal in all circumstances. The Court did not accept that the Administration claim – that is, that citizenship data was needed to help enforce federal voting rights laws — was the real reason.
Before a new maneuver in the Supreme Court by the Administration, the controversy is now unfolding anew in two federal trial courts. The case in Maryland is before District Judge George J. Hazel of Greenbelt, the one in New York is before District Judge Jesse M. Furman of New York City.
Late in the day Wednesday, it appeared that – for the time being – Judge Furman was waiting to see what Judge Hazel was going to do, probably because the controversy has been moving faster in the Maryland court in the wake of the Supreme Court ruling. (The Justices’ decision actually upheld a decision by Judge Furman blocking the citizenship question, but that case is on a post=decision schedule behind the one in Judge Hazel’s court. Both judges had previously blocked the citizenship question, but only Judge Furman’s order was appealed to the Supreme Court by the Administration.)
It was to Judge Hazel that Justice Department lawyer Gardner had said on Tuesday that the citizenship question would not be on the census. After the judge on Wednesday morning saw the President’s tweet, he summoned the lawyers for both sides to a conference call in the afternoon.
At the end of that hearing, the judge gave the lawyers only two options, with a deadline of 2 p.m. Friday to choose one. Either the two sides must come up with an agreed statement that “the citizenship question will not appear on the census,” the judge said, or else they may offer a schedule for how the case should go forward to explore the claim that the Administration wanted the citizenship question because of a racially biased motive, aimed at Hispanics and non-citizens. The racial bias claim is potentially the most serious remaining issue in the controversy; it was raised by challengers in their court cases over the question, but the Supreme Court did not act on it in last week’s ruling, and both Judges Hazel and Furman rejected it in earlier rulings but are now considering new evidence claimed by the challengers.
Judge Hazel bluntly refused to delay his deadline to Monday, as Gardner requested because of the Fourth of July holiday. “Timing is an issue, and we’ve lost a week at this point,” the judge said, adding pointedly: “I’ve been told different things, and it’s becoming increasingly frustrating.”
During the telephone conference call, the Maryland judge seemed somewhat uncertain about what kind of power he could use directly against the President, if he decided to take action to prevent the inclusion of the citizenship inquiry. He said he would have “some concern” if the lawyers for the challengers were to insist that he issue an order to stop the President from publishing tweets that would frighten Hispanics and non-citizens and keep them from responding to the census.
The census, under the Constitution, is supposed to count every one living in America next year, whether or not they are citizens and whether or not they are in the country without legal permission. Census Bureau studies have shown that, if the citizenship question were included on the 2020 census, it could frighten Hispanics and non-citizens worried about possible deportation of family members or friends, resulting in an inaccurate census count that would affect allocation of seats in the U.S. House of Representatives and allocation of billions of dollars in federal funds to the states, based on population.