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Trump administration ends effort to include citizenship question on 2020 census

This afternoon President Donald Trump announced that his administration will end its battle to include a question about citizenship on the 2020 census. The news came two weeks after the Supreme Court blocked the government from including the question, with the court’s four liberal justices joining Chief Justice John Roberts in ruling that the reason that the government had offered for including the question was a pretext. Trump stressed that the government was not “backing down on our efforts” to gather citizenship data, and he explained that it would instead do so using existing government records – much as the Census Bureau had originally suggested.

Today’s statement by the president, made in the Rose Garden at the White House, was the latest chapter in the ongoing saga of the Trump administration’s efforts to include a citizenship question on the 2020 census. Secretary of Commerce Wilbur Ross declared last year that he had decided to include the citizenship question after receiving a request from the Department of Justice, which he said wanted the data to better enforce federal voting rights laws.

Ross’ announcement was instantly the subject of several court challenges, including one in a federal district court in New York. After that court issued a decision in January of this year finding that the decision to include the citizenship question violated the federal laws governing administrative agencies, the Supreme Court agreed to weigh in, and the justices heard oral argument in late April.

Before the justices issued their decision in the case, the challengers in the case – which included New York and other state and local governments – notified the Supreme Court about new evidence in the case, discovered in the files of Thomas Hofeller, a Republican redistricting strategist who had conducted a 2015 study indicating that a citizenship question would provide an advantage to whites and Republicans in future elections. The evidence, the challengers argued, showed that Hofeller, who died last year, had played a key role in the decision to include the citizenship question on the census.

In the days leading up to the Supreme Court’s decision, a federal district judge in Maryland prepared to reopen another challenge to the citizenship question to account for the new evidence. And on June 27, the Supreme Court issued its ruling, rejecting the government’s justification for including the citizenship question and sending the case back for “a better explanation.”

At first, it appeared that the government was going to throw in the towel. On July 2, the government indicated that the census questionnaire had gone to the printer without the citizenship question. But the president quickly branded that news as “fake” in a tweet, prompting U.S. District Judge George Hazel – who is presiding over the Maryland case – to summon the attorneys in the case for a telephone conference call. Jody Hunt, the assistant attorney general for the civil division at the Department of Justice, told Hazel that the government was looking for a “path forward” that would allow it to include the citizenship question.

And on July 5, in a filing requested by Hazel, the government again told the district court that the “Departments of Justice (DOJ) and Commerce have been asked to reevaluate all available options following the Supreme Court’s decision and whether the Supreme Court’s decision would allow for a new decision to include the citizenship question” on the 2020 census.

Courts dealt another blow to the Trump administration’s efforts earlier this week, when they rejected the government’s request to replace the team of lawyers who had litigated the citizenship question. Judge Jesse Furman in New York complained that the Department of Justice had not provided any reasons, “let alone satisfactory reasons,” for wanting to swap in a new team of lawyers, while Hazel expressed concerns that “a shift in counsel at this late stage may be disruptive to an already complicated and expedited case.”

Trump began his speech in the Rose Garden by saying that the government had previously included a question about citizenship on the census. The fact that it no longer can do so, he suggested, results from an effort to erase the “very existence” of citizenship. But it is “essential,” he continued, for the federal government to know how many citizens, noncitizens and undocumented immigrants are in the United States, to allow it to formulate “sound public policy” on topics like education, health care and immigration.

Turning to the dispute over the citizenship question, Trump lamented that the government’s effort to add the question had been delayed by “meritless” litigation. Although the Supreme Court ruled that the government needed to provide a better explanation of its decision to include the question, he continued, doing so would have produced more litigation and “considerable” time delays. The three district courts – in Maryland, New York and California – where disputes over the citizenship question have been filed have been “extremely unfriendly” to the federal government, he argued, and would have kept the government from carrying out the census on time.

Instead, Trump announced, he plans to issue an executive order that will require every federal department and agency to provide the Department of Commerce with administrative records regarding number of citizens and noncitizens; the Census Bureau will then use these records, Trump explained, to gain a full and accurate count. “We will leave no stone unturned,” he promised.

And among other things, Trump noted, states may want to use this data to draw state and local legislative districts based on voter (that is, citizen) population, rather than total population – the question at the heart of a 2016 Supreme Court case.

Trump then introduced Attorney General William Barr. Barr explained that, if the government were to make a new decision to add the citizenship question, that decision would survive a legal challenge, but perhaps not in time to carry out the census. The problem, Barr reiterated, is a “logistical” impediment, rather a legal one.

Recommended Citation: Amy Howe, Trump administration ends effort to include citizenship question on 2020 census, SCOTUSblog (Jul. 11, 2019, 6:56 PM),