GREENBELT, Md. (CN) – A week after the Supreme Court rebuked the government’s contrived rationale for changing the 2020 census to include a citizenship question, Justice Department attorneys told a federal judge Friday they will continue their fight.
“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,” Justice Department attorney Joshua Gardner said in the 5-page court filing.
The proposed discovery plan follows a unanimous ruling by the U.S. Supreme Court that said the Commerce Department offered an implausible explanation for adding the question that experts say would hurt Democratic politics for the next decade.
Though Commerce Secretary Wilbur Ross confirmed Tuesday that the census would go to print without the question, President Donald Trump stirred confusion the next day by tweeting that the administration would “move ahead” with its plan.
As evidenced by a teleconference that also occurred Wednesday before U.S. District Judge George Hazel, Trump’s message came as a surprise to others in government.
According to transcripts from the Maryland hearing, Justice Department attorney Joshua Gardner said the president’s post was the first he heard of the White House’s intent.
Judge Hazel is presiding over one of several challenges across the country to the citizenship question. In New York, which is the case that went to the Supreme Court, attorneys have uncovered a trove of documents indicating that the addition of the citizenship question had no small input from Thomas Hofeller, a now-deceased Republican strategist who undertook a private 2015 study that found the addition of the citizenship question would limit the voting power of “non-Hispanic Whites.”
Hofeller helped the Trump administration craft its argument that the citizenship question would help better enforce the Voting Rights Act.
Because the Justice Department is still pursuing the question, these allegations may now face court scrutiny.
Trump meanwhile told reporters Friday at an impromptu huddle at the White House that he might force the addition of the question in next year’s census via executive order.
The Mexican American Legal Defense and Educational Fund, which represents challengers in the Maryland lawsuit – took umbrage with the threat.
“Executive orders do not override decisions of the Supreme Court. Separation of powers remains, as it has been for over 200 year, a critical part of our constitutional scheme,” Thomas Saenz, president and general counsel of the group, said this morning.
In contrast to the previously stated explanations by his administration, Trump also claimed today that the reason the administration wants to add the question is to draw electoral districts.
“Well, you need it for many reasons,” Trump said. “No. 1, you need it for Congress. You need it for Congress for districting. You need it for appropriations, where the fund’s going. How many people are there. Are they citizens? Are they not citizens? You need it for many reasons.”
The census is used chiefly to gather statistics on the total number of people in the country – regardless of citizenship – because those numbers are used as the basis to allocate seats in the House of Representatives and for the distribution of more than $800 billion in federal services. Those services vary widely, from funding for federal housing to Medicare to education.
A botched count now would mean repercussions for a decade.
Trump’s statement Friday directly contradicts what the solicitor general told the Supreme Court in June. Had Secretary Ross wanted to reinstate the citizenship question for the census for the sole purpose of enabling district drawing on the basis of citizen voting age in a population, rather than total population, the government argued, they would have done so.
While experts contend that the question will deter immigrants from taking the census — thus leading to an undercount that will damage their representation in government — the government has argued that the question will protect minorities’ voting rights.
By law, the government has up to 25 days to file a motion asking the Supreme Court to reconsider its position.
The census has not included citizenship-related questions since 1950 based on findings from the census bureau that, even posed to a specific subset of people in a household, the question potentially did more to skew statistics than not.
Between 1890 and 1910, the citizenship-related question was posed only to foreign born men over 21.
Though Trump can push the question by executive order, Congress in turn could pass legislation that would nullify the order. The president could veto such legislation but it would then go back to Congress. A two-thirds majority vote would be needed to override the president.
According to a report by the Congressional Research Service, from 1789 to 2004, of 1,484 regular vetoes by presidents to up to that point, Congress has overturned just 7 percent, or 106, vetoes, altogether.
According to a proposed scheduling order filed Friday, the plaintiffs in the Maryland case have asked the government to provide written objections within 20 days. The proposal stipulates that the plaintiffs be permitted to take, at most, five depositions from Justice and Commerce Department officials. They have also proposed exercising their right to issue third party subpoenas for documents and depositions.
Any testimony from witnesses, they added, should be held during a motion hearing on Sept. 3 and Sept. 4.
Hazel released an order Friday where he rejected the government’s bid to put further discovery on hold until Ross reaches a decision.
“Plaintiff’s remaining claims are based on the premise that the genesis of the citizenship question was steeped in discriminatory motive,” the order states. “The discovery contemplated by the court related to the recently discovered evidence in this case goes directly to that issue. Regardless of the justifications defendants may now find for a ‘new’ decision, discovery related to the origins of the question will remain relevant.”