After removing a citizenship question on the 2020 census, the DOJ is trying to put it back on — at Trump’s request

One day after the fight over whether the 2020 census would include a citizenship question seemed definitively decided in the negative, the Trump administration abruptly cast the whole issue into doubt, telling federal judges on Wednesday it was looking for ways to add it back in — at President Donald Trump’s direction.

Assistant Attorney General Jody Hunt said in a statement submitted to the US District Court in Southern Maryland, “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.”

Should the lawyers find that path forward, Hunt said, “Our current plan would be to file a motion in the Supreme Court to request instructions on remand to govern further proceedings in order to simplify and expedite the remaining litigation and provide clarity to the process going forward.”

That change came on the president’s orders. One day after Commerce Secretary Wilbur Ross announced his department would begin printing the 2020 census without the citizenship question, Trump tweeted this was false, writing, “We are absolutely moving forward, as we must, because of the importance of the answer to this question.”

The president’s reversal on the issue was confusing, even seemingly to members of the administration, including his assistant attorney general, who called the current plan to put the question back on the census, “Very fluid at [the] present.”

The printing of the census was scheduled to begin no later than July 1 to ensure it would be ready for mailing next spring; it isn’t clear how Trump’s announcement effects either deadline. It also isn’t clear how the addition would be carried out — but activists have argued the successful addition of a citizenship question would scare millions of immigrants off of filling out their mandatory surveys and skew the population counts used to draw Congressional districts.

Trump is testing the boundaries of executive power

One day before Trump waded in on Twitter and seemingly spoke directly with the Department of Justice, the situation didn’t seemed fluid at all.

After the Supreme Court ruled last week that the Census could not ask respondents whether they were a US citizen (at least based on the administration’s current justification for doing so), Commerce Secretary Wilbur Ross announced the 2020 census will be printed without any questions on citizenship.

The Supreme Court did leave one avenue open for the administration to pursue in order to get the question in the census. As Vox’s Dara Lind explained:

“Thursday’s Supreme Court ruling gave the agency the chance to offer a more honest explanation of why the Commerce Department decided to ask about citizenship on the census, rather than saying it was necessary to enforce the Voting Rights Act (which the justices dismissed as a fig leaf).

“But in order to successfully reinstate the question, they’ll need to offer an explanation that passes court muster in this case and win a separate case in Maryland examining whether the citizenship question was added out of a racist intent to marginalize Latinx voters.”

Initially, it seemed the Trump administration was uninterested in presenting any new evidence or reasoning behind its desire to have the question included. Despite a tweet from the president last week saying that he had asked “lawyers if they can delay the Census, no matter how long,” a trial attorney at the Department of Justice sent the case’s plaintiffs an e-mail this week that said the administration had begun printing the forms without the question.

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Sean Collins