DOJ Still Doesn’t Know What Excuse to Use for Census Citizenship Question

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Justice Department attorneys didn’t have much of a response to a federal judge’s order to report by Friday whether the Trump administration would move forward with including a citizenship question on the 2020 Census.


Donald Trump prompted the latest flurry of court activity on the citizenship question with a tweet last Wednesday. Despite confirmation from his own commerce secretary that the census would be printed without the question, Trump wrote, “We are absolutely moving forward.”

U.S. District Judge George J. Hazel in Maryland responded to that tweet with an order during an emergency hearing for Justice Department attorneys to clarify whether the administration plans to move forward or not. Currently, an injunction upheld by the Supreme Court prohibits the administration from including the question.

In a court filing on Friday, DOJ attorneys wrote that “Any new decision by the Department of Commerce on remand providing a new rationale for reinstating a citizenship question on the census will constitute a new final agency action, and Plaintiffs will be fully entitled to challenge that decision at that time.”

They added: “The Departments of Justice (DOJ) and Commerce have been asked to reevaluate all available options following the Supreme Court’s decision and whether the Supreme Court’s decision would allow for a new decision to include the citizenship question on the 2020 Decennial Census. In the event the Commerce Department adopts a new rationale for including the citizenship question on the 2020 Decennial Census consistent with the decisions of the Supreme Court, the Government will immediately notify this Court so that it can determine whether there is any need for further proceedings or relief.”

In layman’s terms, this basically means: “We don’t know how we’re going to do this thing, but Trump wants us to do this thing, so we’ll let you know as soon as we come up with something.”

That type of behavior in court generally doesn’t sit well with judges, and what’s particularly notable here is that it’s coming from top government attorneys.


In the Supreme Court ruling upholding the injunction from a separate case in New York, the court didn’t say that it strictly opposed the president’s right to add a citizenship question to the census, but that the Trump administration’s rationale for doing so—to enforce the 1965 Voting Rights Act—was “contrived.” In other words, a lie.

Trump made things even more difficult for DOJ attorneys on Friday, when he admitted to reporters that the real reason for the citizenship question was to help Republicans in congressional redistricting efforts.


“You need it for many reasons,” Trump told reporters. “Number one, you need it for Congress. 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? Are they not citizens? You need it for many reasons.”

In response to the DOJ attorneys’ vague filing on Friday, Judge Hazel ordered attorneys to proceed with discovery in the case. He said he would allow up to five depositions of officials from the commerce and justice departments.


In the separate case in New York, plaintiffs argued on Friday that the Trump administration lied in court when it insisted that a June 30 deadline existed for the printing of the census forms. A hearing for that motion is scheduled for July 23, The New York Times reported.

“The Trump administration’s clumsy, blatant, and highly public scramble — which Justice Department lawyers have all but described as a quest for new pretext — makes a mockery of any breathing room that the chief justice’s opinion might have allowed for retaining a citizenship question,” legal blogger Joshua Matz told the Times.


Meanwhile, Trump also said on Friday the administration is considering “four or five ways” to include the citizenship question, including issuing an executive order, which also would be challenged in court.

“We’re doing well on the census…So, we’ll see what happens,” Trump claimed. “We could also add an addition on, so we could start the printing now and maybe do an addendum after we get a positive decision.”


Legal analysts say any type of “addendum” also would be challenged in court.

The National Law Journal, citing court records, noted that a final deadline to add the citizenship question could come as late as October, after the Supreme Court’s summer recess.