Justice Department signals to court it’s still fighting for citizenship question

The Justice Department signaled to a federal judge in Maryland Friday that the Trump administration is still fighting to place the citizenship question on the census, something Mr. Trump insists he wants. The Justice Department, unsurprisingly, was unable to provide a different rationale for adding the question, as the Supreme Court has insisted is necessary to successfully and legally do so.

U.S. District Judge George Hazel had given the Justice Department until 2 p.m. to explain what the administration intends to do, after Mr. Trump baffled even his own Justice Department lawyers when he tweeted Wednesday morning his administration is still fighting to keep the question — after the Justice and Commerce Departments said late Tuesday the census questionnaire is being printed without it. The Supreme Court ruled last week the question couldn’t move forward as-is, because the administration’s rationale for adding the question didn’t add up and was insufficient.

The DOJ in Friday’s status filing said that the DOJ and Census have been “instructed to examine whether there is a path forward, consistent with the Supreme Court’s decision, that would allow for the inclusion of the citizenship question on the census.”

But it’s unclear how they’ll do that.

“In the event the Commerce Department adopts a new rationale for including the citizenship question on the 2020 Decennial Census consistent with the decisions of the Supreme Court, the government will immediately notify this court so that it can determine whether there is any need for further proceedings or relief,” the Friday filing in federal court in Maryland said.

The judge in the case determined later Friday that discovery will move forward immediately — a win for plaintiffs in the case, civil rights groups that argue the administration’s census question is aimed at discriminating against minorities. The DOJ had wanted discovery to be delayed until they discovered a new rationale for adding the question to the census.

“Given that time is of the essence, therefore, the prudent course is to proceed with discovery,” Hazel wrote.

It’s unclear what the administration will do next. The president told reporters Friday he’s “thinking about” issuing an executive order to ensure the question gets on the census, along with several other options. The Trump administration is running out of time to get the question on the census, although the president says he might add an “addendum” to the census to ensure the question makes it. He has also threatened to delay the census, although the legal obstacles to that are even more significant, given that the Constitution requires the census to be taken every 10 years.

Mr. Trump’s tweet on the census Wednesday threw the White House, Commerce Department and Justice Department for a loop this week, forcing some officials to work over the Fourth of July holiday over matter they thought was essentially settled. In a conference call with lawyers in the case, DOJ attorney Josh Gardner was perplexed by what the president meant.

“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,” DOJ lawyer Chris Gardner said on a conference call with attorneys on the case earlier this week. “I do not have a deeper understanding of what that means at this juncture other than what the president has tweeted. But obviously, as you can imagine, I am doing my absolute best to figure out what’s going on.”