WASHINGTON — President Donald Trump announced Thursday that his administration will drop efforts to put a citizenship question on the 2020 Census, a dramatic concession just a week after insisting they were "absolutely moving forward" and that news reports to the contrary — citing his own executive branch — were "FAKE!"
Flanked by Attorney General Bill Barr and Commerce Secretary Wilbur Ross in the Rose Garden at the White House, Trump said that because of the time it would take to continue litigating over the question, the administration would pursue a different option — to collect citizenship data from federal agencies. The Census Bureau had originally recommended this plan to Ross, but he rejected it in favor of adding the citizenship question.
"Today I am here to say that we are not backing down on our effort to determine the citizenship status of the United States population," Trump said.
Barr said he believed there was "no question" the administration could survive another round of court review if they continued fighting, but that the litigation would take too long to carry out the census on time. A majority of the Supreme Court concluded that a citizenship question wasn't unlawful, but that the administration couldn't proceed based on the current record. That left the door open for Ross to present a new rationale and go back to the courts. Barr said Thursday that he thought the government had "ample justification" to ask about citizenship and "could plainly provide rationales for doing so that would satisfy the Supreme Court."
He said they faced "a logistical impediment, not a legal one."
"There is simply no way to litigate these issues and obtain relief from the current injunctions in time to implement any new decision without jeopardizing our ability to carry out the census, which we're not going to do," Barr said.
DOJ spokesperson Kerri Kupec said in a statement following the press conference that the department "will promptly inform the courts that the Government will not include a citizenship question on the 2020 decennial census."
The groups that sued the administration over the question claimed victory. Dale Ho, director of the ACLU's Voting Rights Project, said in a statement that "Trump’s attempt to weaponize the census ends not with a bang but a whimper."
"Now he’s backing down and taking the option that he rejected more than a year ago. Trump may claim victory today, but this is nothing short of a total, humiliating defeat for him and his administration," Ho said. “When the details of Trump’s new plan to compile citizenship data outside of the census come out — and his plans for using that data — we will scrutinize them closely and assess their legality."
The president's announcement ended a week of speculation about what the president would do in the face of a US Supreme Court opinion blocking his administration from putting the question on the census form. A majority of the justices, in a June 27 opinion written by Chief Justice John Roberts Jr., concluded that the reason Ross had given for adding the question — to aid the Justice Department in enforcing voting rights — was "contrived" and didn't match the evidence.
On July 2, all signs pointed to the fight being over: The Justice Department and Commerce Secretary Wilbur Ross both said the census forms would be printed without the question.
But the following day, Trump threw everything into disarray with a tweet claiming articles citing those statements were "FAKE!" In the days that followed, the Justice Department confirmed they'd been instructed to look for ways to include the question in the 2020 count. Trump told reporters last week that he'd spoken with Attorney General Bill Barr and had "a number of different avenues" to include the question.
The sudden reversal spurred a flurry of activity in federal courts in California, Maryland, and New York, where litigation over the citizenship question has been playing out for more than a year, as judges tried to understand what was going on. The Justice Department moved to swap out the team of lawyers involved, fueling speculation that the administration was planning to adopt a new legal strategy to try to get the question onto the form and was digging in for a protracted court battle.
Trump's announcement on Thursday appeared to end the fight over what will appear on the 2020 questionnaire, but it doesn't end the legal proceedings. A federal judge in Maryland reopened proceedings into whether the effort to include the question was unconstitutionally motivated by a desire to discriminate against Latinos and immigrants, and that will go forward. In New York, the ACLU has argued the Trump administration misrepresented information about the genesis of the question, and that the judge should consider sanctions.
Still, Trump's announcement heads off the continuation of a bitter court fight over whether the citizenship question could appear on the 2020 questionnaire — a move that civil rights and immigrant advocacy groups charged was aimed at suppressing responses from Latino and immigrant communities to dilute their representation in congressional districting and budget decisions.
Ross announced in March 2018 that he would add a citizenship question to the 2020 questionnaire. Ross's memo stated that he'd considered four options for obtaining citizenship data — to continue to ask about it in the American Community Survey, which goes out to a small percentage of American households each year; to put a citizenship question on the decennial form, which bureau officials warned would scare off noncitizens from responding; to pull data from other agencies, such as immigration enforcement offices and the Social Security Administration, which is what bureau officials recommended; or to combine a citizenship question with agency data.
Ross went with the citizenship question, rejecting the bureau's recommendation to use administrative on the grounds that it wouldn't cover the entire population. He wrote that he was doing so in response to a request from the Justice Department to better enforce voting rights. The challengers presented evidence to the courts that Ross's office had asked several departments to make a request for citizenship data, arguing it showed that Ross wanted to add the question and went looking for ways to do it.
Multiple lower court judges issued injunctions blocking the question, agreeing that the administration's process for putting the question on the form had been unlawful. Rather than follow the normal legal process and appeal those decisions to the circuit courts, the Justice Department skipped that step and petitioned the Supreme Court to hear the case right away.
If the administration had pushed ahead with trying to get the question onto the form, legal experts expected the administration to face questions from judges about what they should do with repeated representations by the government throughout the litigation — including before the Supreme Court — that the Census Bureau had to finalize the questionnaire by the end of June. The justices and lower court judges, relying on those representations, agreed to speed up the proceedings.
The ACLU asked the judge in New York to enter an order blocking the administration from trying to add the question going forward based on the June deadline issue. They cited a legal principal known as "judicial estoppel" — the idea that parties can't rely on one argument to win one phase of a case, and then argue something to the contrary to win at a later time. US District Judge Jesse Furman set a hearing for July 23 for arguments on the ACLU's request; it wasn't immediately clear if the ACLU will drop the issue.
"What is clear is that Defendants are out of time for a 'do over,'" the ACLU and other lawyers in the case argued in a July 5 filing. "Defendants’ 'heads I win, tails we’ll see' approach undermines confidence in both their ability to conduct the 2020 Census and public confidence in the courts and the rule of law."
As the legal proceedings press on, the Justice Department will still have to get judges to sign off on their effort to swap out the legal team handling the cases. The government asked for permission earlier this week to withdraw the previous group of lawyers, some of whom had been involved for more than a year, but the judges in all three cases said the department's filings either violated court rules or were otherwise deficient.
The Justice Department can try again, but will have to provide more information about the reason for the late change in lawyering and how the department will avoid any delays or disruptions.