Donald Trump has called a press conference for Thursday afternoon to address his administration’s latest aggressive efforts to place a question about citizenship on the next US census.
Following “a very big and very important social media summit” at the White House, Trump tweeted: “We will all go to the beautiful Rose Garden for a News Conference on the Census and Citizenship.”
Multiple news outlets quoting unnamed White House sources reported that Trump intended to take executive action in an effort to include the citizenship question on 2020 census forms, which are already being printed without the question.
ABC News reported on Thursday afternoon, however, that Trump would defer to the court rulings on the census and instead instruct the commerce department to get citizenship data “through other means”.
In hedging his actions on the matter, Trump could avoid triggering a legal shockwave, by directly defying a federal court order explicitly enjoining the commerce department from adding the question “without curing the legal defects” of its argument in favor of adding the question on the once-a-decade population count.
Legal advocates promised an immediate challenge to any attempted executive action on the matter by Trump. “This will not go unanswered,” tweeted Dale Ho, director of the voting rights project at the American Civil Liberties Union.
In a ruling last month, the supreme court upheld the lower court decision against Trump, saying that the commerce department’s stated rationale for including the question – to protect voting rights – “seems to have been contrived” and was a “distraction”.
Trump acknowledged the truth of that assessment last week, when he told reporters at the White House that the proposed citizenship question was part of a longterm Republican blueprint to use the congressional redistricting process to tilt power in their favor. “Number one, you need it for Congress – you need it for Congress for districting,” Trump said. “You need it for appropriations – where are the funds going?”
Legal analysts warned that any attempt by Trump now to alter the census could open administration lawyers to charges of lying before the supreme court, because in an effort to accelerate the case they told the court five times that the census had to be finalized by 30 June – nearly two weeks ago.
“Separate from whether the president has the power to take this step,” tweeted the University of Texas law professor Steve Vladeck, “the Solicitor General repeatedly represented to #SCOTUS that the #2020Census had to be finalized by 6/30. Any move to add the question at this point suggests those representations were false.”
Following the supreme court ruling in June, the matter appeared to be settled – until a Trump tweet.
Justice department lawyers affirmed to federal judges that the decision had been taken to print the census without the question, and the commerce secretary, Wilbur Ross, announced on 3 July that “the Census Bureau has started the process of printing the decennial questionnaires without the question”.
Then it came crashing down in 280 characters.
“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 tweeted. “We are absolutely moving forward, as we must, because of the importance of the answer to this question.”
One Trump adviser, former federal judge Michael Luttig, argued that executive action by Trump would not precipitate a legal crisis, but “would more than satisfy the supreme court which has wanted nothing more than a rational justification for the question”.
But Luttig appeared to be among a small minority to think that.
“He won’t defy a court order,” tweeted Marty Lederman, a professor at Georgetown University Law Center, about Trump. “Nor will he issue an executive order directing the bureau to add the question. Eventually, Secretary Ross will issue a new directive with a new rationale, and *that* will be subject to legal challenge.”
The attorney general, William Barr, said earlier this week that he saw a legal path forward to including the question. “I agree with [Trump] that the supreme court decision was wrong,” Barr told the Associated Press, adding that he believes there is “an opportunity potentially to cure the lack of clarity that was the problem and we might as well take a shot at doing that”.
But the Trump administration appeared to be running out of options. A federal court dealt a blow to the administration earlier this week by refusing a justice department request to change its legal team on the case. “Defendants provide no reasons, let alone ‘satisfactory reasons’, for the substitution of counsel,” wrote the judge in a blistering denial.
Trump said last week that he was contemplating ordering the commerce department to print the question on the census, regardless of the supreme court ruling.
“We’re thinking about doing that,” Trump said. “It’s one of the ways. We have four or five ways we can do it. It’s one of the ways and we’re thinking about doing it very seriously.”
