WASHINGTON (CN) – Following a tweet by President Donald Trump affirming his commitment to add a citizenship question to the 2020 census, Justice Department attorneys told a federal judge Wednesday they have received instructions to find another way to include it while observing parameters set out in a recent ruling by the U.S. Supreme Court.
In a teleconference Wednesday, assistant attorney general for the Justice Department’s Civil Division Jody Hunt told U.S District Judge George Hazel in Maryland the administration will renew its fight.
“We at the Department of Justice have been instructed to examine whether there is a path forward, consistent with the Supreme Court’s decision that would allow us to include the citizenship question on the census,” Hunt said.
Hazel set a Friday deadline for the Trump administration to decide whether it will agree – in writing – to drop inclusion of the question.
If not, Hazel said he may reevaluate the merit of ongoing allegations of discrimination by members of the administration in their effort to include the question.
The development comes as the 2020 census goes to print, in compliance with the high court’s orders to eschew the citizenship question.
“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 Wednesday morning. “We are absolutely moving forward, as we must, because of the importance of the answer to this question.”
Trump’s proclamation arrived less than a day after Commerce Secretary Wilbur Ross said that the 2020 decennial census questionnaire was already being printed without the question, despite his personal disdain for the Supreme Court decision that compelled this move.
NBC News obtained similar confirmation Tuesday after counsel for those challenging the question shared an email they received from a Department of Justice trial attorney.
“The decision has been made to print the 2020 Decennial Census questionnaire without a citizenship question and that the printer has been instructed to begin the printing process,” the email said.
Trump’s tweet this morning muddies these waters. Though he could be suggesting that the administration will push to include a citizenship question in future census surveys, the president has also discussed in the past that he would try to delay printing of the survey without the question.
Representatives for the White House and Justice and Commerce Departments did not respond to requests for comment. But according to the transcripts released Wednesday night, government attorney Joshua Gardner told Hazel he was being as “candid” as possible with the court.
“The tweet this morning was the first I had heard of the president’s position on this issue, just like the plaintiffs, your honor. I do not have a deeper understanding of what that means at this juncture other than what the president has tweeted,” Gardner said.
He reiterated that the census had in fact gone to print but Hazel sought greater clarity from the administration.
Setting a Friday deadline, Hazel ordered the administration to produce a stipulation indicating that the citizenship question would not appear on the questionnaire or a proposed scheduling order that would detail how the parties wish to proceed.
Chief Justice John Roberts wrote the majority opinion for the Supreme Court last week that blocked the addition of the question on the basis that the federal government had given an arbitrary explanation for adding it.
The Commerce Department argued the inclusion was done at the behest of the Justice Department, but Roberts said the evidence proved otherwise. He described Ross specifically as “determined to reinstate a citizenship question from the time he entered office,” noting that the secretary repeatedly instruct staff to make it happen.
While other Commerce officials explored whether another agency would request census-based citizenship data, Roberts said Ross waited and then contacted the attorney general directly to ask if the Justice Department would make the request.
Roberts said the Commerce Department has the power to make changes to the census but it cannot do so arbitrarily.
“Accepting contrived reasons would defeat the purpose of the enterprise,” Roberts wrote. “If judicial review is to be more than empty ritual, it must demand something better than the explanation offered for the action taken in this case.”