Government lawyers affirm fight over 2020 census isn't over, according to statement to judge

The Justice Department affirmed Friday that it still is pursuing a path for adding a citizenship question to the 2020 census, according to a filing in federal court in Maryland.

The filing followed statements earlier in the day from President Donald Trump in which he said he is "thinking of" issuing an executive order to add the controversial question.

Government lawyers said in their filing Friday that the Justice and Commerce departments had been "instructed to examine whether there is a path forward" for the question and that if one was found, they would file a motion in the U.S. Supreme Court to try to get the question on the survey to be sent to every U.S. household.

Attorneys for the government and challengers to the addition of the question faced a 2 p.m. deadline set by U.S. District Judge George J. Hazel to lay out their plans.

Hazel said earlier this week that if the government stuck with a plan to try to add the question, he would move ahead on a case before him probing whether the government has discriminatory intent in wanting to ask about citizenship.

The Justice Department lawyers argued in Friday’s filing that there was no need to start producing information in that case since, for now, courts have barred the government from adding the question. But the government also agreed to follow a schedule to move ahead if that was laid out.

The government has begun printing the census forms without the question, and that process will continue, administration officials said.

Trump raised the possibility that some kind of addendum could be printed separately after further litigation of the issue, a move would almost certainly carry additional costs and may not be feasible, according to census experts.

"We’ll see what happens," Trump said. "We could start the printing now and maybe do an addendum after we get a positive decision. So we’re working on a lot of things, including an executive order."

Census experts say that, among other concerns, such an addendum would likely violate the bureau’s strict rules for testing a question, which include considering how the placement of a question on the form affects respondents’ likelihood of filling it out.

Trump’s comments came as government lawyers scramble to find a legal path to carry out the president’s wishes despite their conclusions in recent days that no such avenue exists.

Census officials and lawyers at the Justice and Commerce departments scrapped holiday plans and spent Independence Day seeking new legal rationales for a citizenship question that critics say could lead to a steep undercount of immigrants, which could limit federal funding to some communities and skew congressional redistricting to favor Republicans.

"It’s kind of shocking that they still don’t know what they’re doing," said Thomas Saenz, president and general counsel of the Mexican American Legal Defense and Educational Fund. MALDEF is representing some of the plaintiffs in the case in Maryland. "We’re in this posture because they don’t know what the real plan is."

The question had seemed settled after the Supreme Court ruled last week against the Trump administration. As late as Tuesday evening, Commerce Secretary Wilbur Ross, who oversees the census, said the administration was dropping its effort and was printing the census forms without the citizenship question.

But Trump, in tweets Wednesday and Thursday, said he was not giving up. He tweeted Thursday morning, "So important for our Country that the very simple and basic 'Are you a Citizen of the United States?' question be allowed to be asked in the 2020 Census. Department of Commerce and the Department of Justice are working very hard on this, even on the 4th of July!"

The reversal came after Trump talked by phone with conservative allies who urged him not to give up the fight, according to a senior White House official and a Trump adviser, who both spoke on the condition of anonymity.

In the Supreme Court’s splintered ruling last week, Chief Justice John Roberts said the government had provided a "contrived" reason for wanting the information, seemingly leaving open the door for the government to offer a new justification and see whether it satisfies the court. An executive order from Trump and a new rationale given by Ross on the basis of that order could give the administration something to take back to the justices.

Trump told reporters Friday that the White House was surprised by the U.S. Supreme Court decision and that he found it “very shocking” that the citizenship question could not be included.

Trump said he believes the rationale provided by Ross “can be expanded very simply.”

"He made a statement," Trump said of Ross. "He wrote something out. The judge didn’t like it. I have a lot of respect for Justice Roberts. But he didn’t like it, but he did say come back. Essentially, he said come back."

Saenz derided the idea that an executive order could brush aside the 15 months of litigation that culminated in the high court’s ruling.

"Despite what yesterday’s military show may have looked like, the United States is not a Soviet bloc dictatorship," Saenz said, referring to the “Salute to America” event that Trump staged Thursday. "Executive orders do not override decisions of the U.S. Supreme Court. Separation of powers remains, as it has been for over 200 years, a critical part of our constitutional scheme."

Earlier Friday, Ken Cuccinelli, Trump’s acting U.S. Citizenship and Immigration Services director, said during an appearance on Fox Business Network that there’s a "high chance" that Trump would find a way, either through executive order or "another administrative way, to ask the simple census question."

Cuccinelli said he met with Trump this week and the president "was very determined about this."

In litigation earlier this year, the government stressed that forms needed to go to the printer by July 1, prompting the U.S. Supreme Court to expedite its consideration of the question.

In a June filing to the court, Solicitor General Noel Francisco noted that witnesses at trial had said changes to the questionnaire after June 2019 "would impair the Census Bureau’s ability to timely administer the 2020 census" and that a delay until October would be feasible only with "exceptional resources."

Colby Itkowitz contributed to this report.