WASHINGTON — A day after pledging that the 2020 census would not ask respondents about their citizenship, the Justice Department reversed course on Wednesday and said it was hunting for a way to restore the question on orders from President Trump.
Officials told a federal judge in Maryland that they thought there would be a way to still add the question, despite printing deadlines, and that they would ask the Supreme Court to send the case to district court with instructions to remedy the situation.
President Trump had been frustrated with Commerce Secretary Wilbur Ross for mishandling the White House’s effort to add a citizenship question to the 2020 census, according to an administration official, and said on Wednesday that he was “absolutely moving forward” with plans to add it despite a Supreme Court decision last week that added barriers to the move.
It was the second time that Mr. Trump said he was directing the Commerce Department to move forward with the plan, which critics contend is part of an administration effort to skew the census results in favor of Republicans. On Tuesday, the Justice Department said that the census forms were being printed without the citizenship question and Mr. Ross said that he was heeding the court’s ruling.
“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!” Mr. Trump wrote Wednesday on Twitter. “We are absolutely moving forward, as we must, because of the importance of the answer to this question.”
The Supreme Court last week rejected the administration’s stated reason for adding a question on citizenship to the census. Chief Justice John G. Roberts Jr., writing for the majority, said the explanation offered by officials for adding the question “appears to have been contrived.” But he left open the chance the administration could offer an adequate rationale.
On Wednesday afternoon, White House officials were actively working on a way to satisfy Mr. Trump’s demand but had not yet settled on a solution.
The suggestion that Mr. Trump was prepared to defy the court’s decision stirred fears among opponents of the plan who hoped the debate over the citizenship question had been put to rest.
The Mexican American Legal Defense and Educational Fund, which is representing plaintiffs in legal cases in Maryland, quickly condemned the president’s remarks.
“We are outraged at Trump’s tweet,” Denise Hulett, the group’s national senior counsel, said in a statement. “The Census Bureau must immediately commit to counteract his statements with the truth — that the citizenship question will not be on the census.”
Three separate federal courts — in Manhattan, Maryland and California — have ruled that the Commerce Department violated federal procedural law and the Constitution in hastily tacking the citizenship question onto the census last year. The Supreme Court upheld the Manhattan ruling last week.
Separately, an appeals court has ordered the Maryland case reopened to consider new evidence on a third charge: that Mr. Ross’s decision to add the question amounts to intentional discrimination against Hispanics, who are considered most likely to be undercounted out of fear of the consequences of revealing their citizenship status or the status of people who live with them. About one in 10 American households includes at least one noncitizen.
Judge George J. Hazel of the United States District Court, who is overseeing the Maryland lawsuits, unexpectedly summoned lawyers in the case to a conference call on Wednesday afternoon, Ms. Hulett said. Judge Hazel later ordered the Trump administration to confirm by Friday afternoon that it is not placing the citizenship question on the census questionnaire, lawyers for plaintiffs in the case said.
Read the Transcript of the Conference Call
A transcript of a call with Judge George Hazel and the lawyers in a Maryland court case about the proposed citizenship question on the 2020 census. (PDF, 15 pages, 0.11 MB)
15 pages, 0.11 MB
Absent that confirmation, the judge said, the Maryland lawsuit will continue.
Attorney General Letitia James of New York, whose office headed the census lawsuit that led to the Supreme Court ruling last week, dismissed Mr. Trump’s statement as “another attempt to sow chaos and confusion.”
“The Supreme Court of the United States has spoken, and Trump’s own Commerce Department has spoken,” she said in a statement. “It’s time to move forward to ensure every person in the country is counted.”
The federal district judge in Manhattan overseeing that lawsuit, Jesse M. Furman, ordered the Justice Department on Thursday to brief him on the conference with Judge Hazel so he can decide whether a similar conference is needed in the Manhattan case.
Mr. Trump’s statements directly contradicted both the Justice Department and the Commerce Department, which had stated in writing that the next census will not include a question on citizenship.
Mr. Ross said in a statement on Tuesday that “the Census Bureau has started the process of printing the decennial questionnaires without the question.” And in a teleconference on Tuesday conducted by Judge Hazel, Justice Department lawyers confirmed that the government would take no further legal steps to add the citizenship question to the questionnaire.
Regulatory and legal experts largely agree that the administration’s chances of retaining the question were exceedingly dim in the wake of the Supreme Court’s decision to block it.
The administration itself had argued to the justices only this month that legal challenges to the question had to be resolved because the printing of census forms could not be delayed past early July. But the only avenue the court left open to restoring the question — producing and winning approval of a new explanation justifying it — would have taken weeks, if not months, to complete.
Census results are used to determine House of Representatives seats and for drawing political maps at all levels of government across the country. They are also used to allot federal funding for social services.
Adding the citizenship question could lead to an undercounting in areas with large numbers of immigrants, who tend to vote Democratic, potentially costing Democrats representation and government funding.
The defeat before the court came as a surprise to Mr. Trump, who for months was assured that the change was on track, and has placed Mr. Ross back in the hot seat.
Earlier in Mr. Trump’s term, the president soured on Mr. Ross’s handling of trade negotiations and suggested that the 81-year-old billionaire investor had lost his deal-making touch. Mr. Ross has largely avoided the president’s ire since then, but the census matter has continued to dog him.
Mr. Ross has also drawn anger from Democrats in Congress for offering shifting explanations about who he spoke with to determine the legality of adding the citizenship question. In 2018 he acknowledged that he had discussed the issue with Stephen K. Bannon, Mr. Trump’s former political strategist, after originally claiming he talked about it only with the Justice Department.
Administration officials said that the president was not planning to fire Mr. Ross, but that the situation had renewed concerns about his performance.
By Wednesday afternoon, whatever frustration that Mr. Trump had with the commerce secretary had largely dissipated, a second administration official said, and the president was focused on finding a way to add a question to the census. Mr. Trump told aides that might mean tacking on a question after census questionnaires had been printed.
Mr. Ross’s department will soon have to clarify the status of the census publicly. The House Oversight Committee said Wednesday that the director of the Census Bureau, Steven Dillingham, would appear before a subcommittee on July 24 to review preparations for the 2020 head count.
“It is time for the Census Bureau to move beyond all the outside political agendas and distractions and devote its full attention to preparing for the 2020 census,” Representative Jamie Raskin, a Maryland Democrat on the committee, said in a statement.
A Commerce Department spokesman did not respond to a request for comment.
