Following the Supreme Court’s decision to block a citizenship question on the 2020 census, President Donald Trump said Thursday he will seek to get it approved, even if the national count is delayed.
Hours after the court in a 5-4 opinion held the administration had not properly justified its reason for adding the question, Trump tweeted that he asked attorneys to potentially delay the census in order to bring the case back to the court. That could run up against the administration’s June 30 deadline for adding the question and printing more than 1 billion census documents on time.
The census is to kick off with early counting in Alaska in January and national counting gets underway next spring.
“Seems totally ridiculous that our government, and indeed Country, cannot ask a basic question of Citizenship in a very expensive, detailed and important Census, in this case for 2020,” Trump tweeted.
Dale Ho, the head of the ACLU’s Voting Rights Project, one of the plaintiffs that challenged the question, told reporters Thursday that the court’s decision does not give the administration enough time to come up with a new rationale for adding the question. “For all intents and purposes this is over,” Ho said.
The Census Bureau issued a statement Thursday saying that it is still reviewing the decision. The Justice Department issued a statement from spokeswoman Kelly Laco before the president’s tweet, but didn’t hint at what the administration will do.
“We are disappointed by the Supreme Court’s decision today. The Department of Justice will continue to defend this Administration’s lawful exercises of executive power,” Laco wrote.
The challengers convinced district courts that the Commerce Department violated administrative law by adding the question. The administration appealed, saying it did so at the request of the Justice Department in order to gather data to better enforce the Voting Rights Act.
In the opinion, Chief Justice John G. Roberts Jr. called the reasoning presented by the administration “contrived” and that “altogether, the evidence tells a story that does not match the explanation the Secretary gave for his decision.”
“We do not hold that the agency decision here was substantively invalid,” Roberts wrote. “But agencies must pursue their goals reasonably.”
The court sent the case back down to the district court and to Commerce to form a better rationale if the administration wants to try again. Throughout litigation the government has asserted that it has to start printing the forms in early July, but there was some testimony from a government witness, cited by the Fourth Circuit, that put that deadline at the end of October.
The Supreme Court’s decision did not address the three injunctions district courts placed on the administration, barring the addition of the citizenship question to the census last year.
Ho argued that it would be the “height of hypocrisy,” for the administration to abandon its end-of-June deadline now, but “I wouldn’t put anything past them.” Still, Ho noted that formulating such a rationale typically takes far longer to construct than the few days the administration has left.
“There is really, really not enough time and if the administration tries to rush it then that is a clear red flag,” Ho said.
Sen. John Cornyn, R-Tex., who’s backed the addition of a citizenship question to the census, said he’s not sure the administration could present its revised rationale before its own deadline. “As a practical matter, I don’t know how they are going to be able to do it,” he said.
The Supreme Court decision Thursday does not end the litigation, though, or even the only potential block to the citizenship question.
Most of the remaining claims tie back to evidence unearthed from the files of the late Republican redistricting strategist Thomas Hofeller. Challengers have alleged he served as a source of the question to the administration in order to gather data and draw maps “advantageous to Republicans and non-Hispanic whites,” based on the number of citizens rather than total population.
Earlier this week the Fourth Circuit remanded discrimination claims tied to the census citizenship question brought by civil rights groups to a Maryland district judge, and one of the judges on that panel suggested a separate injunction to adding the citizenship question.
Additionally, Ho and the other challengers from the New York case have a separate motion for sanctions against administration officials over their behavior in the case and possibly misleading testimony. John Freedman, partner at Arnold & Porter LLP and counsel for the challengers, said they may use that motion to pursue equitable remedies against the administration.
“The judge is very concerned and we are very concerned about the conduct of the Justice Department in this case,” Freedman told reporters.
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