President Donald Trump’s expected executive order adding a citizenship question to the census Thursday will meet a swift legal challenge, one the administration appears ready to fight to the Supreme Court again.
Trump said Thursday morning he would have a news conference on the census and immigration and a source familiar with his plans confirmed he will issue an executive order to add the question in response to a temporary block imposed by the Supreme Court in late June.
The administration has taken the past few weeks to formulate its next steps following that decision. Challengers to the citizenship question indicated Thursday they will fight the latest attempt in court.
Dale Ho, director of the ACLU’s Voting Rights Project, one of the plaintiffs in New York federal court, tweeted that Trump’s announcement “will not go unanswered.”
This will not go unanswered https://t.co/FrGcEjPFJa
— Dale Ho (@dale_e_ho) July 11, 2019
“The Supreme Court has spoken. The Trump administration’s effort to add a citizenship question to the 2020 census is unlawful,” Ho said in a statement. “If President Trump takes executive action, we will take legal action.”
The administration appears ready to duke it out up to the Supreme Court. Attorney General William Barr told reporters Monday that Trump’s plan would provide “an opportunity potentially to cure the lack of clarity that was the problem [in the Supreme Court] and we might as well take a shot at doing that.”
Challengers in the New York case, including the ACLU and the New York state attorney general, have a pending motion for an injunction against any citizenship question on the census. There the litigants argued the administration should be foreclosed from trying to add the question as its own June 30 deadline to resolve the issue has passed.
In Maryland, advocacy groups have started discovery on claims that the citizenship question’s addition was discriminatory.
The litigation has become increasingly contentious in recent weeks: Federal judges in both cases have also blocked the administration from substituting new lawyers in the case. U.S. District Judge Jesse M. Furman in New York called the attempted withdrawal of attorneys without explanation “patently deficient.”
Trump has publicly fumed about the citizenship question since the Supreme Court rejected the administration’s original Voting Rights Act enforcement rationale as “contrived.” Although the administration started printing more than 1.5 billion census documents last week, he’s pledged to fight to add the question.
The administration previously secured swift consideration of the dispute by asserting it had a deadline to finalize the questionnaire by the end of June to send it to printers.
The continuing fight to add the citizenship question has gained Trump plaudits among Republicans, who have echoed his argument that it is “ridiculous” that the administration can’t ask the question.
More than a dozen House Republicans pushed for the executive order in a letter to the White House Wednesday. Reps. Chip Roy of Texas, Jim Jordan of Ohio and other conservatives argued the question is “clearly constitutional and lawful” and could succeed in court.
Former appellate Judge J. Michael Luttig, who now serves as Boeing’s general counsel, has argued such an order could succeed in court.
“If the president were to issue an executive order adding citizenship question to the 2020 census and that executive order were to be grounded in the full Article II powers of the presidency, then the [Commerce] secretary’s new justification for the citizenship question would satisfy the Supreme Court’s requirement that the secretary’s decision be reasonable under the Administrative Procedures Act,” Luttig said.
While Roy and other Republicans have said they would like states to use the data for redistricting, House GOP leader Kevin McCarthy didn’t answer questions about that before the announcement Thursday.
“The president has the right to do it,” the California Republican told reporters Thursday. “The census only comes around once every 10 years, we asked numerous amount of questions. I think this is data that we have a right to know.”
Problems in Congress
Even if the administration wins in court, it faces other problems: Its contractor already started printing more than 1.5 billion census documents, and it could take additional funds to reprint them on a short deadline.
New York Democrat José E. Serrano, who chairs the House Commerce-Justice-Science Appropriations Subcommittee, vowed in a statement Thursday not to support the “flagrant waste of money” to reprint forms adding the question.
House Democrats have already backed a ban on the citizenship question as part of a fiscal 2020 $8.45 billion allocation for the Census Bureau the chamber passed last month. Speaker Nancy Pelosi told reporters Thursday that Democrats “fully expect the [printing] process to go forward,” noting that the district courts still have injunctions in place against the citizenship question.
“[Trump will] try all kinds of things, but he’ll have to get around that injunction,” she said.
Lindsey McPherson, John T. Bennett and Katherine Tully-McManus contributed to this story.