Justice Department lawyers told a federal judge on Friday that they would press ahead in their efforts to add a citizenship question to the 2020 census, but indicated they did not know yet what kind of rationale they would put forward.
The assertion capped a chaotic week in which administration officials first promised to abide by a Supreme Court order that effectively blocked the question from next year’s head count, then reversed themselves after President Trump denounced their statements on Twitter as “fake news” and pledged to restore the question.
Mr. Trump told reporters on Friday morning that he was considering issuing an executive order adding the question to the census, one of four or five options that had been presented to him.
Government lawyers have been scrambling since Mr. Trump took to Twitter on Wednesday to find a way to restore the citizenship question while obeying the Supreme Court’s order. The justices ruled last week that the administration’s rationale for the question was “contrived,” and said that it could be added to census questionnaires only if officials could offer an acceptable explanation of why it was needed.
That rationale has been the central issue in the battle over the question, which has morphed from a legal confrontation in four federal courts to a fierce partisan struggle with potentially huge implications for national and local politics alike. Census figures determine how the government allots hundreds of billions of federal dollars for programs that impact the entire nation, citizens and noncitizens alike.
WASHINGTON—A divided Supreme Court on Thursday prevented the Trump administration, for now, from asking U.S. residents on the 2020 census whether they are citizens, a considerable setback for the White House.
The court, in an opinion by Chief Justice John Roberts, didn’t issue a definitive decision finding the citizenship question unlawful, but it raised concerns about the Trump administration’s stated reason for adding the question to the census.
In strong language, the chief justice, joined by the court’s four liberal justices, said the administration’s official explanation “seems to have been contrived.”
The court sent the case back for more proceedings, leaving the 2020 census in a state of uncertainty—though if the deadline for finalizing the form is July 1, as census officials said this week, the question won’t be on it. However in at least one government filing, a census official gave the final date as Oct. 31.
Three different U.S. district judges have ruled that including the question was unlawful, with each finding that Commerce Secretary Wilbur Ross had not provided the public with his real reasons for doing so.
The Supreme Court’s ruling, which comes at a time of deeply divided immigration politics, could have considerable ramifications for the U.S. population count, as well as the drawing of congressional districts and the allocation of more than $600 billion in federal funds that are based on census data.
The census, mandated by the Constitution, counts all U.S. residents, regardless of citizenship or residency status.
A group of 18 states that sued Mr. Ross, as well as some career Census Bureau staffers, said adding a citizenship question would dampen response rates in immigrant-heavy communities, even in households with legal residents. If that happens, those communities could see a smaller piece of the federal pie, both in political representation and government funding.
The Trump administration said Mr. Ross, whose department oversees the Census Bureau, had the legal authority to include the question and determined that the benefits of having the citizenship data outweighed the potential of a lower response rate. It also pointed to earlier census surveys in the nation’s history that had asked about citizenship.
Mr. Ross’s explanations for adding the question have shifted over time. He and other Trump administration officials have said that census citizenship data would help the Justice Department with its efforts to comply with the Voting Rights Act, which protects minority voting rights.
Legal challengers in the case have said the administration’s reasons were the opposite—to dilute minority representation—and they said additional evidence has come to light recently that supports their claims. A Maryland federal judge this week said that evidence, which came from the files of a GOP political consultant who died last year, “potentially connects the dots between a discriminatory purpose—diluting Hispanics’ political power—and Secretary Ross’s decision.”
The evidence wasn’t directly before the Supreme Court when it took up the case, though it has received additional legal filings from both sides in recent weeks. New lower court proceedings are pending, though it isn’t clear what impact, if any, those will have after the high court’s ruling.
In April when the Supreme Court heard oral arguments on the census, President Trump said Americans deserved to know how many citizens were among those residing in their country.
Federal law prohibits the Census Bureau from sharing survey answers with federal immigration authorities, but a survey commissioned by the bureau last year found that asking about citizenship could be a substantial barrier to getting people to participate.
The whole country hasn’t been asked about citizenship on the decennial survey since 1950, but the government in recent years has asked a smaller sample of U.S. residents about their status.
The citizenship question touches on the broader immigration agenda that has been a central focus of the Trump presidency. Mr. Trump has barred travel by people from certain Muslim-majority countries—a ban the Supreme Court upheld last year. Mr. Trump’s administration also has attempted to limit immigrant claims for asylum; tried to cancel Obama-era benefits for illegal immigrants who came to the U.S. as children; and sought to build new barriers on the southern border. All of those efforts remain tied up in the courts.
While Ross has testified about the question before Congress and wanted to avoid a deposition in this lawsuit, U.S. District Judge Jesse M. Furman wrote in an order Friday “the question is not a close one: Secretary Ross must sit for a deposition because, among other things, his intent and credibility are directly at issue in these cases.”
.. government officials should only be called to testify in exceptional circumstances, since they have “greater duties and time constraints than other witnesses.” Thus, the 2nd Circuit ruled, such officials should only be deposed if they have first-hand knowledge or if other sources cannot provide the same information.
Furman said this case meets both of those standards. The heart of the issue is Ross’s own intention in adding the question to the census.
To avoid imposing too much of a burden on Ross, Furman limited the deposition to four hours.
.. evidence found by the attorneys general that suggests Ross took a strong interest in getting the citizenship question added himself, repeatedly raising the topic despite objections from experts within the Census Bureau.