WASHINGTON — One day after both the Justice Department and Commerce Department said the 2020 Census would go ahead without a citizenship question, the administration reversed course, with a senior DOJ official telling a judge Wednesday that they were "instructed" to find a way to include it.
The fight over the inclusion of a citizenship question in the decennial count appeared over as of Tuesday night. But then President Donald Trump tweeted Wednesday midday that news reports saying the administration was dropping the question — reports based on official statements from the Justice Department and Commerce Department — were "FAKE!"
Civil rights groups that had declared victory less than 24 hours earlier scrambled to figure out what was going on, and a federal judge in Maryland ordered an immediate hearing.
According to a transcript of the hearing before US District Judge George Hazel in Greenbelt, Maryland, which was not open to the public or press, Joseph "Jody" Hunt, who leads the Justice Department's Civil Division, said they had been tasked with figuring out if the Census Bureau could ask about citizenship in the decennial count, notwithstanding a recent US Supreme Court decision that prohibited it, at least for now.
"We at the Department of Justice have 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," Hunt said. "We think there may be a legally available path under the Supreme Court's decision. We're examining that, looking at near-term options to see whether that's viable and possible."
Hunt didn't offer details about who had "instructed" the Justice Department or what options the government's lawyers might be considering.
The Justice Department's representations to Hazel on Wednesday indicated the administration's position had changed quickly, and that the DOJ lawyer who a day earlier told the judge there would be no citizenship question, Joshua Gardner, had been left in the dark.
Gardner said Wednesday that his comments to the judge during a telephone conference on Tuesday were "absolutely my best understanding of the state of affairs and, apparently, also the Commerce Department's state of affairs." Commerce Secretary Wilbur Ross released a statement on Tuesday saying the census form would be printed without a citizenship question.
"The tweet this morning was the first I had heard of the President's position on this issue, just like the plaintiffs and Your Honor. I do not have a deeper understanding of what that means at this juncture other than what the President has tweeted," Gardner said. "But, obviously, as you can imagine, I am doing my absolute best to figure out what's going on."
He repeatedly referred to the situation as "fluid."
Hazel gave the government until Friday at 2 p.m. to say if they were dropping the question. If they wanted to pursue including the question on the form, he ordered them to submit a schedule for the next phase of litigation.
Hunt told the judge that if the government came up with a "viable path forward," their plan was to ask the Supreme Court for instructions on sending the case back to the lower courts for additional legal proceedings over whatever that plan might be.
In the meantime, though, Gardner confirmed that the Census Bureau would continue printing the questionnaire without the citizenship question. There are multiple court injunctions in place that block the administration from including it.
It wasn't immediately clear what the administration could do to include the question without running afoul of the Supreme Court and lower court decisions, or the logistics of redoing forms that were already printed.
"Under this administration, there's no accounting for doubling down on stupid. Unfortunately, and embarrassingly for our nation, today's reversal from yesterday's certainty repeats the pattern of this entire affair," Thomas Saenz, president and general counsel of the Mexican American Legal Defense and Educational Fund, one of the groups that sued in Maryland, said in a statement.
Shortly after the hearing in Maryland, the Justice Department filed a letter in separate litigation in federal court in New York over the citizenship question confirming that the department had been "asked to reevaluate all available
options" to include the citizenship question in light of the Supreme Court's decision. The letter again did not specify who ordered the Justice Department to explore other options and when that happened.
The Supreme Court ruled last week that the administration could not include the citizenship question based on the current record, with a majority of justices finding that Ross's stated reason for adding it — enforcing voting rights — was a "pretext." The court separately said that a citizenship question wasn't necessarily unconstitutional, leaving the door open to a future effort to include it.
After the Supreme Court ruled, Trump repeatedly said the administration would still look for ways to include it. But on Tuesday afternoon, a Justice Department lawyer emailed lawyers who had sued over the question to say that a "decision has been made" to print the decennial questionnaire without the citizenship question. Ross then confirmed in a statement that the form would be printed without the question, although he said he still disagreed with the court's decision.
But at 11:06 a.m. on Wednesday, Trump tweeted that news reports citing statements made by Ross and the Justice Department were "FAKE!", and confusion ensued.
"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!," Trump wrote. "We are absolutely moving forward, as we must, because of the importance of the answer to this question."
In the hours that followed, the press offices at the Commerce Department and Justice Department didn't respond to questions about the meaning of Trump's tweet, which seemed to directly contradict what the agencies had said less than 24 hours earlier.
The Justice Department hadn't filed anything formal in court by Tuesday night, but lawyers involved in litigation over the question in federal court in Maryland said that the judge had held a call — it was not open to the public or press and was off the record, which meant there was no publicly available transcript — with the lawyers, and that the Justice Department had represented orally that the government would go ahead with the count without the question.
During Wednesday's hearing, Hazel said that he had a Twitter account, and followed Trump's account, and saw the tweet in question. Trump's tweet, he said, "directly contradicted" what the government had told him the day before.
When Gardner asked to extend the Friday filing deadline to Monday, Hazel refused.
"Timing is an issue, and we've lost a week at this point. And this isn't anything against anybody on this call. I've been told different things, and it's becoming increasingly frustrating," the judge said.