The Trump administration is still exploring ways to add a citizenship question to the 2020 decennial census, Justice Department lawyers told a federal judge in Maryland on Friday.
In a new filing, the DOJ promised U.S. District Judge George Hazel that he will be notified immediately if “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 Supreme Court held last week that a citizenship question was legal, but said that Wilbur Ross, the commerce secretary, had not offered an honest rationale for adding it. The decision implied that the administration could still add the question if it provides a truthful justification.
Although time was short—the deadline to change the census was supposedly June 30—it was widely predicted that Secretary Ross would nevertheless present a new rationale. The administration had been litigating this case for more than a year and President Trump himself had taken a personal interest in the outcome.
But on Tuesday afternoon, the Justice and Commerce Departments defied expectations by announcing that they had abandoned the quest to include the question. Secretary Ross, who is a personal friend of President Trump, said that he had given the order to print the census without the question.
Then about 24 hours later, in a stunning development still not fully understood, the DOJ backtracked and told Judge Hazel it had been “instructed to examine whether there is a path forward…to include the citizenship question on the census.” Explaining the sudden reversal, media reports said that President Trump was displeased with the quick surrender and had been urged by prominent conservatives to continue the fight. (Perhaps he also felt that the white flag was a bit too French for his all-American 4th of July spectacular.)
Following the turnabout, Judge Hazel, who is overseeing a separate equal-protection challenge to the citizenship question, gave the DOJ until Friday to clarify its intentions. If the DOJ could not confirm by Friday that the question was out, Judge Hazel said that there would still be a live controversy warranting additional discovery. Two hours after the government told him it had not yet folded, Judge Hazel entered an order permitting the renewed discovery.
If that weren’t enough for the DOJ to contend with, there is action on a different front too. The ACLU is arguing to Judge Jesse Furman, in the Southern District of New York, that the government should be barred from modifying the 2020 census because it previously claimed that the deadline for doing so was June 30.
The Court should apply the doctrine of judicial estoppel to hold Defendants accountable for their repeated and unequivocal representations that the Census Bureau must finalize the 2020 Census questionnaire by the end of June 30, 2019, and to prohibit Defendants from concocting a new basis to add a citizenship question to this Decennial Census.
Judge Furman has scheduled oral argument on this issue for July 23.
Assuming the political appointees in the administration are genuinely invested in the question (we know the President is, but is he motivating anyone else?), they have not…handled this situation optimally, shall we say. They should not be sending mixed signals about their intentions. They should not have wasted the entire week following the Supreme Court’s decision. They should not be publicly advertising the fact that they are searching for a new rationale, since that might lend credence to inevitable, and potentially meritorious, accusations of pretext.
Whatever is going on backstage—and it is probably even wilder than the farce unfolding before the public—the administration has to get its act together now or this case is over, if it isn’t already. The clock is ticking and the Census Bureau is continuing to print the census without the question. At a certain point, it will simply be too late or too expensive to print with the question, no matter what rationale is presented and no matter how receptive to it the Supreme Court might be.
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