The Trump administration on Wednesday abruptly reversed itself and told a federal judge it was still weighing how to include a controversial question on U.S. citizenship on the 2020 census, after President Donald Trump insisted in a tweet “we are absolutely moving forward, as we must” to include the question one day after officials had indicated they were dropping the effort.
Education groups and immigrant advocates fear the question would depress response rates among Hispanics and households with at least one immigrant, affecting the allocation of federal aid and political power.
“We at the Department of Justice have been instructed to examine whether there is a path forward consistent with the Supreme Court’s decision that would allow us to include the citizenship question on the census,” Joseph Hunt, the assistant attorney general for the Civil Division, told U.S. District Judge George J. Hazel of Greenbelt, Md., who is presiding over one legal challenge to the citizenship question, in a teleconference, according to media reports.
Hazel requested more information by Friday at 2 p.m.
Another Justice Department lawyer told a federal district judge in New York City that, in contrast to statements made Tuesday to lawyers for the challengers, federal government lawyers “have now been asked to reevaluate all available options” for including the citizenship question after last week’s U.S. Supreme Court decision that blocked it.
The Justice Department did indicate that the Census Bureau was proceeding with the printing of forms without the citizenship question included.
The flurry of activity on Wednesday came after the president’s tweet did not quite correspond to the representations being made by officials of his administration, including Secretary of Commerce Wilbur L. Ross Jr., who had confirmed on Tuesday that census forms were being printed without the citizenship question.
“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 tweeted Wednesday. “We are absolutely moving forward, as we must, because of the importance of the answer to this question.”
A Change from Tuesday to Wednesday
The Trump administration had said on Tuesday said it was proceeding with printing forms for the 2020 census without the controversial proposed question on citizenshi.
The U.S. Supreme Court ruled 5-4 last week that the voting-right-enforcement rationale offered by Ross, who oversees the U.S. Census Bureau, was a pretext and that the government would have to do more to provide a valid reason to add the question.
“Counsel—We can confirm that the decision has been made to print the 2020 Decennial Census questionnaire without a citizenship question, and that the printer has been instructed to begin the printing process,” says a Tuesday email signed by U.S. Department of Justice attorney Kate Bailey, according to a Twitter post by Daniel F. Jacobson, a former lawyer in the White House counsel’s office under President Barack Obama.
Dale Ho, the director of the American Civil Liberties Union’s Voting Rights Project, who co-argued the case of Department of Commerce v. New York on behalf of the challengers to the question, said in a statement, “In light of the Supreme Court’s ruling, the Trump administration had no choice but to proceed with printing the 2020 census forms without a citizenship question. Everyone in America counts in the census, and today’s decision means we all will.”
The decennial census is the foundation for allocation of billions of dollars of federal aid to states and localities, including for such education programs as the National School Lunch Program, for which census figures are used to help distribute some $19 billion in annual aid; Title I compensatory education aid to school districts, at $15.8 billion; grants to states under Part B of the Individuals with Disabilities Education Act, at $12.3 billion; and the Head Start preschool program, at $8.5 billion.
Chief Justice John G. Roberts Jr. wrote for the majority in the census case on June 27 that the Ross’s rationale that the citizenship question was needed to better enforce the Voting Rights Act of 1965 “seems to have been contrived.”
“Several points, considered together, reveal a significant mismatch between the decision the secretary made and the rationale he provided,” Roberts wrote, in reference to evidence that the secretary was determined to reinstate a citizenship question from the time he entered office in 2017.
Trump in recent days discussed the possibility of delaying the census to give his administration time to come up with a valid rationale for the question. And his tweets issued late Tuesday seemed to suggest he was not quite on the same page as administration officials who were saying the question would not be included.
“A very sad time for America when the Supreme Court of the United States won’t allow a question of ‘Is this person a Citizen of the United States?’ to be asked on the #2020 Census!” the president wrote. “Going on for a long time. I have asked the Department of Commerce and the Department of Justice......to do whatever is necessary to bring this most vital of questions, and this very important case, to a successful conclusion. USA! USA! USA!”
A version of this news article first appeared in The School Law Blog.