The Fight Over the Census Citizenship Question Isn’t Over

Photo: J. Scott Applewhite (AP)

Perhaps nothing is more symbolic of Donald Trump’s disdain for the U.S. Constitution than his attempt to force the Justice Department to defy the nation’s separation of powers by ignoring a Supreme Court ruling on Independence Day. But that’s where we’re at.

Earlier this week, the debate about whether the 2020 Census would include a question about citizenship seemed to be settled. Last week, the Supreme Court rejected the Trump administration’s justification for including the question about citizenship on the census. On Tuesday, Commerce Secretary Wilbur Ross acknowledged that ruling. Justice Department officials said the same day they would move forward with printing the census without the question.

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But then Trump sent everything into a tailspin with a tweet on Wednesday calling news of the announcements “fake.” “We are absolutely moving forward, as we must, because of the importance of the answer to this question,” Trump tweeted.

That prompted an unplanned telephone conference between U.S. District Judge George J. Hazel in Maryland, Justice Department lawyers, and attorneys for plaintiffs in a case attempting to block the question from being included. That conversation was bizarre and unprecedented, to say the least.

Firstly, one of the Justice Department lawyers seemed just as shocked by Trump’s tweet as the judge and everyone else. Secondly, the other Justice Department official on the call, Jody Hunt, told the judge the administration would seek a different legal justification to include the question on the census.

As MSNBC’s Rachel Maddow pointed out, Hunt, who currently serves as the assistant attorney general for the department’s civil division, previously served as former Attorney General Jeff Session’s chief of staff. That means that he intimately knows the consequences of defying a Trump order.

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“Is the Government going to continue efforts to place a citizenship question on the 2020 census?” Judge Hazel asked, according to a transcript of Wednesday’s telephone conference.

Justice Department attorney Josh Gardner, who was on vacation and admitted that he was taken by surprise by Trump’s tweet, responded by saying, “What I told the Court yesterday was absolutely my best understanding of the state of affairs and, apparently, also the Commerce Department’s state of affairs, because you probably saw Secretary Ross issued a statement very similar to what I told the Court. The tweet this morning was the first I had heard of the President’s position on this issue, just like the plaintiffs and Your Honor. I do not have a deeper understanding of what that means at this juncture other than what the President has tweeted. But, obviously, as you can imagine, I am doing my absolute best to figure out what’s going on.”

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He added: “I can tell you that I have confirmed that the Census Bureau is continuing with the process of printing the questionnaire without a citizenship question, and that process has not stopped.”

Gardner called the aftermath of Trump’s tweet “a very fluid situation which we are trying to get our arms around.”

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But Hunt interjected, saying that Justice Department officials had 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.”

In other words, administration officials are looking for another excuse to include the question in order to send the case back to the Supreme Court in hopes that the court will green-light it. A do-over, if you will. Never mind that Justice Department attorneys had told the court that the printing of the census had to take place in June to meet deadlines.

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Judge Hazel was not amused. “If you were Facebook and an attorney for Facebook told me one thing, and then I read a press release from Mark Zuckerberg telling me something else, I would be demanding that Mark Zuckerberg appear in court with you the next time because I would be saying I don’t think you speak for your client anymore,” the judge said.

He set a deadline of Friday at 2 p.m. for Justice Department lawyers to tell him whether they’d be printing the census without the question or moving forward.

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On Thursday, Trump doubled down, via Twitter. “So important for our Country that the very simple and basic ‘Are you a Citizen of the United States?’ question be allowed to be asked in the 2020 Census,” he wrote. “Department of Commerce and the Department of Justice are working very hard on this, even on the 4th of July!”

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Additionally, Axios reported that Trump is considering issuing an executive order to include the question on the census.

“We didn’t come this far just to throw in the towel,” a senior administration official told Axios.

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“If the president of the United States were to issue an executive order, supported by his full Article II powers, directing that the citizenship question be included in the 2020 census, I believe the Supreme Court would affirm the constitutional power of the president to include the citizenship question in the census,” former federal judge J. Michael Luttig told the news site.

But as legal analysts point out, the census requirement is outlined in Article I, not Article II, of the Constitution. And the Constitution’s Census Clause explicitly states that Congress determines the conducting of the census.

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At this point, it’s unclear what will happen next. But the next chapter of this ridiculous saga takes place tomorrow afternoon. Meanwhile, Happy Fourth of July, everyone!

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