Trump weighing executive order on citizenship question
The filing followed statements earlier in the day from President Donald Trump in which he said he is “thinking of” issuing an executive order to add the controversial question.
Government lawyers said in their filing Friday that the Justice and Commerce departments had been “instructed to examine whether there is a path forward” for the question and that if one was found they would file a motion in the Supreme Court to try to get the question on the survey to be sent to every U.S. household.
Attorneys for the government and challengers to the addition of the question had faced a 2 p.m. deadline Friday set by U.S. District Judge George J. Hazel to lay out their plans so he could decide whether to proceed with a case before him probing whether the government has discriminatory intent in wanting to ask about citizenship.
Hazel said that the case will proceed, scheduling information-gathering to begin now and conclude by Aug. 19, with any witnesses to testify in September.
The government has begun printing the census forms without the question, and that process will continue, administration officials said.
Justice Department lawyers had argued in Friday’s filing that there was no need to start producing information since for now courts have barred the government from adding the question.
The Maryland case poses the issue of whether the addition of the citizenship question would violate equal-protection guarantees and whether it is part of a conspiracy to drive down the count of minorities.
Statements Friday from Trump and his acting U.S. Citizenship and Immigration Services director, Ken Cuccinelli, seemed to add confusion to the government’s previously stated rationale for the addition.
The administration had said in multiple legal battles that the question was needed to get a better sense of the voting population to help enforce the Voting Rights Act. Opponents said the question could result in a severe undercount of immigrant communities.
Speaking to reporters Friday at the White House, Trump said the question was needed “for many reasons.”
“No. 1, you need it for Congress — you need it for Congress for districting,” he said. “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.”
Trump’s statement could give additional heft to evidence discovered in May suggesting the administration worked with a Republican redistricting strategist who saw the question as a way to give Republicans and non-Hispanic whites an electoral advantage. Government officials had previously denied that adding the question had anything to do with the strategist or his analysis.
Appearing on Fox News Business, Cuccinelli listed justifications for the question: “Frankly, as part of the ongoing debate over how we deal financially and legally with the burden of those who are not here legally,” Cuccinelli said, listing the justifications for the census question. “That is a relevant issue.”
Trump had raised the possibility that some kind of addendum could be printed separately after further litigation of the issue, a move that would almost certainly carry additional costs and may not be feasible, according to census experts.
“We’ll see what happens,” Trump said. “We could start the printing now and maybe do an addendum after we get a positive decision. So we’re working on a lot of things, including an executive order.”
Census experts say that, among other concerns, such an addendum would likely violate the bureau’s strict rules on testing a question, which include considering how the placement of a question on the form affects respondents’ likelihood of filling it out.
Trump’s comments came as government lawyers scrambled to find a legal path to carry out the president’s wishes despite their conclusions in recent days that no such avenue exists.
Census officials and lawyers at the Justice and Commerce departments scrapped holiday plans and spent Independence Day seeking new legal rationales for a citizenship question.
“It’s kind of shocking that they still don’t know what they’re doing,” said Thomas Saenz, president and general counsel of the Mexican American Legal Defense and Educational Fund, which is representing some of the plaintiffs in the case in Maryland.
In the Supreme Court’s splintered ruling last week, Chief Justice John Roberts said the government had provided a “contrived” reason for wanting the information, seemingly leaving open the door for the government to offer a new justification and see whether it satisfies the court. An executive order from Trump and a new rationale given by Commerce Secretary Wilbur Ross on the basis of that order could give the administration something to take back to the justices.
But “executive orders do not override decisions of the Supreme Court,” Saenz said. “Separation of powers remains, as it has been for over 200 years, a critical part of our constitutional scheme.”
PREVIOUS ARTICLE
