Americans are celebrating the nation’s independence this July 4th, but there will be no holiday respite for harried staffers at the Commerce and Justice Departments.
They will almost certainly be preparing for a court hearing Friday, after being summoned to explain the administration’s unanticipated, and possibly illegal, change of position on including a citizenship question on the 2020 U.S. Census.
Last week, the U.S. Supreme Court dealt the Trump administration a stunning (if narrow) defeat, rejecting patently false argument that it wanted to add a citizenship question to the decennial national headcount so that it could better enforce the Voting Rights Act. The high court ruled that the administration would have to provide a more believable rationale.
On Tuesday, the Trump administration appeared to wave a white flag, with the Department of Justice announcing that there would be “no citizenship question on the 2020 census” after months of fighting to insert one.
The matter appeared to be settled, until it wasn’t: On Wednesday President Donald Trump backtracked, vowing on Twitter that he would move forward with the citizenship question after all.
“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! We are absolutely moving forward, as we must, because of the importance of the answer to this question,” he wrote, throwing the entire process of printing the forms and commencing with the count into chaos.
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! We are absolutely moving forward, as we must, because of the importance of the answer to this question.
— Donald J. Trump (@realDonaldTrump) July 3, 2019
Trump redoubled his support for a citizenship question in a tweet sent Thursday morning.
“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. Department of Commerce and the Department of Justice are working very hard on this, even on the 4th of July!, he wrote.
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. Department of Commerce and the Department of Justice are working very hard on this, even on the 4th of July!
— Donald J. Trump (@realDonaldTrump) July 4, 2019
Wednesday’s tweet threw the entire process into chaos and prompted the judge to order a hearing set for Friday to resolve the confusion.
Transcripts of a phone conversation that included a U.S. district court judge and lawyers from the Commerce and Justice departments show the degree of the disarray.
Despite the administration’s position just one day earlier that it had abandoned plans for a citizenship question, in a Wednesday court filing in the Southern District of Maryland, Assistant Attorney General Jody Hunt said the Justice Department 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.”
The judge in the case, U.S. District Judge George Hazel wanted clarification, and asked for a phone conference with the stakeholders. The judge seemed particularly confused by what the fact that the president’s tweets in no way corresponded with what was actually happening .
“I saw a tweet that directly contradicted the position …[shared by the Justice Department] with me yesterday,” said Hazel.
Justice Department lawyer Joshua Gardner, who was also on the call, was also clearly baffled by the situation. He first reminded Hazel that he had been the DOJ for 16 years, though “multiple administrations,” and that he has always “endeavored to be as candid as possible with the Court.”
He then made it very, very clear that he had no idea why any of this was happening.
“The tweet this morning was the first I had heard of the president’s position on this issue,” said Gardner, adding that he does “not have a deeper understanding” of what the president is doing but that he would do his “absolute best to figure out what’s going on.”
The only thing the befuddled Gardner could confirm “for sure” was that “the Census Bureau is contenting with the process of printing the questionnaire without a citizenship question, and that that process has not stopped.”
Hazel has gave the Trump administration a 2 p.m.Friday deadline to come up with a justification to include a citizenship question on the 2020 census.
Reporting on that Supreme Court decision last week, ThinkProgress’s Ian Millhiser wrote that the Supreme Court opinion on the case holds that there is evidence that Commerce Secretary Wilbur Ross wasn’t trying to add the question for the reason he claimed he was doing so: To help the Justice Department encore the Voting Rights Act.
He came up with that rationale after the fact. “Ross’ mistake, in other words, is that he almost certainly lied about why he wanted the citizenship question,” wrote Millhiser.
There were also documents turned over by the family of GOP gerrymandering architect Thomas Hofeller, showing that he had told the Trump administration to include the citizenship question in the census as it would hurt Democrats and be “advantageous to Republicans and Non-Hispanic Whites.”
The original deadline for printing the census forms was actually on Monday, with former census officials already sounding the alarms for the costly consequences of such delays.
Experts have warned against including the question in the census as it would in all likelihood make the count inaccurate — fearing repercussions (such as detention and deportation), undocumented migrants might either skip filling out the form or misrepresent themselves.
It would also damage representation in states with high immigrant populations.