U.S. Supreme Court

Judge orders DOJ to respond after Trump tweet contradicts plan to print census without citizenship question

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Updated: “A very sad time for America when the Supreme Court of the United States won’t allow a question of ‘Is this person a Citizen of the United States?’ to be asked on the #2020 Census!” President Donald Trump tweeted Tuesday after his administration announced it would print forms for the 2020 census without a question on citizenship.

The move was apparently a surprise to the Department of Justice attorneys who told U.S. District Judge George Hazel of the Southern District of Maryland on Tuesday that the census forms would not contain a citizenship question.

“I don’t know how many federal judges have Twitter accounts, but I happen to be one of them, and I follow the president, and so I saw a tweet that directly contradicted the position that Mr. [Joshua] Gardner had shared with me yesterday,” Hazel said in the transcript of a telephone conference that he ordered held on Wednesday.

“What I told the court yesterday was absolutely my best understanding of the state of affairs,” Joshua Gardner, special counsel at the DOJ, responded. “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. 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.

“I can tell you that I have confirmed that the Census Bureau is continuing with the process of printing the questionnaire without a citizenship question, and that process has not stopped.”

The Trump administration had argued that asking for citizenship data would help enforce the Voting Rights Act of 1965, but in a 5-4 decision last week, the Supreme Court held that the Commerce Department needed to provide more evidence that the question was legal and necessary. Faced with continuing its legal battle or meeting census printing deadlines, the administration chose the latter, according to coverage from the New York Times, Washington Post, Politico, Wall Street Journal and NPR.

Despite the decision, Trump also said on Twitter that he was asking “the Department of Commerce and the Department of Justice … to do whatever is necessary to bring this most vital of questions, and this very important case, to a successful conclusion.”

“I respect the Supreme Court but strongly disagree with its ruling regarding my decision to reinstate a citizenship question on the 2020 Census,” Commerce Secretary Wilbur Ross said in a statement Tuesday.

U.S. District Judge Jesse M. Furman of Manhattan had ruled in January that Ross acted arbitrarily in violation of the Administrative Procedure Act when he added the question. But the judge found no violation of the due process clause because the plaintiffs did not prove that Ross was motivated by discrimination against noncitizens and minorities.

The district court vacated Ross’ decision and enjoined him from reinstating the citizenship question until he cured his legal errors.

In its decision, the Supreme Court said while the enumeration clause gives the commerce secretary authority to add the citizenship question, that decision can be reviewed under the Administrative Procedure Act to determine whether it was arbitrary and capricious.

The Supreme Court said the district court was justified in its decision to return the case to the Commerce Department.

Chief Justice John G. Roberts Jr. also acknowledged in the opinion that there was “a disconnect between the decision made and the explanation given” and said “contrived reasons” should not be accepted by the courts.

Legal experts have argued that asking people whether they are American citizens would decrease the number of responses and lead to inaccurate data. They also say it could potentially skew election results in favor of Republicans when the data is used for redistricting.

The New York case was remanded to the lower court, which also impacted the case brought against the Department of Commerce by separate plaintiffs in the Southern District of Maryland.

Trump had said he would attempt to delay the census to give his administration time to explain why the citizenship question was necessary, but according to the New York Times, the Census Bureau was told to start printing the census questionnaires without the question.

Ross said his “focus, and that of the bureau and the entire department, is to conduct a complete and accurate census.”

In another tweet Wednesday, Trump called news reports that his administration was dropping plans to include the citizenship question in the census “incorrect or, to state it differently, FAKE!”

He said the administration was “absolutely moving forward,” according to CNBC.

Hazel ordered the DOJ attorneys to respond by Friday with the administration’s plans.

“By Friday at 2 p.m., I want one of two things,” Hazel told the DOJ attorneys in the Wednesday conference call. “I either want a stipulation, as we’ve been discussing, indicating that the citizenship question will not appear on the census, or I want a proposed scheduling order for how we’re going forward on the equal protection claim that’s been remanded to this court.”

Hazel continued, “If you were Facebook and an attorney for Facebook told me one thing, and then I read a press release from Mark Zuckerberg telling me something else, I would be demanding that Mark Zuckerberg appear in court with you the next time, because I would be saying I don’t think you speak for your client anymore.”

Related articles:

ABAJournal.com: “SCOTUS upholds judge’s decision to ask for better explanation on census citizenship question”

ABAJournal.com: “SCOTUS told of new evidence in challenge to census citizenship question”

ABA Journal: “Court considers whether inquiry about citizenship belongs on the U.S. census”

ABAJournal.com: “Supreme Court agrees to hear challenge to citizenship question on census”

Updated at 7:40 p.m. to include information from the transcript of the telephone conference in the Southern District of Maryland.

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