Written by Maggie Haberman and Adam Liptak
President Donald Trump on Friday said he is “thinking of” issuing an executive order to allow for a citizenship question on the 2020 census, as his administration faced a midafternoon court deadline to say how it planned to move forward.
Trump made the remarks to reporters on the south lawn of the White House, as he prepared to depart for his private club in Bedminster, New Jersey, for the weekend.
Trump said he was considering four or five options about how to add a citizenship question to the 2020 census after the Supreme Court ruled that the administration’s rationale for creating such a question was “contrived.” Critics of the question say it would lead to an undercount of immigrants, which would affect how congressional seats are allocated and how billions of dollars of federal money are spent.
Since Wednesday, officials have been looking at the options to allow the question to be included. Trump has told advisers that a question could simply be added on after the questionnaires are printed.
“We’ll see what happens,” Trump said Friday. “We could also add an addition on. So we could start the printing now and maybe do an addendum after we get a positive decision. So we’re working on a lot of things including an executive order.”
The administration’s lawyers had told the Supreme Court that the deadline for printing the forms was June, while groups challenging the question said the forms could be printed as late as October, though at additional cost.
Chief Justice John Roberts wrote the opinion last month in which the court rejected the Trump administration’s justification for adding the citizenship question but left open the possibility that it could present a better rationale.
“I have a lot of respect for Justice Roberts, but he didn’t like it,” Trump said. “But he did say come back — essentially he said come back.”
After the Supreme Court ruling, administration lawyers said they planned to drop the issue and would print the census questionnaires without asking about citizenship. But Trump was infuriated by that decision, and he wrote on Twitter that his administration would find a way forward.
It was not clear why there was a disconnect between what the president wanted and why lawyers at the Justice and Commerce departments had decided to drop the issue. Officials said that Trump was briefed on the matter, but he was not warned of the political implications of giving up. He later became upset at the appearance that the administration wasn’t fighting harder on an issue that he believed all voters — and not only his core base of supporters — would be interested in.
Trump offered some support for Wilbur Ross, the commerce secretary, who is responsible for the census, calling him a “good man.” Trump also said he had spoken to Attorney General William Barr about his options. “We have a number of avenues, we could use” all or one of them, Trump said.
Trump did not say what his options were. But people familiar with the discussions said that among the things being considered is using federal records other than the census questionnaires sent to every household to try to glean information about undocumented immigrants.
A federal judge in Maryland, where one of three lawsuits related to the citizenship question is being heard, has given the administration until 2 p.m. Friday to explain how it would proceed. An emergency hearing was called by phone on Wednesday after Trump tweeted that the administration was looking for a path forward.
Among the possible options is an executive order, but it was not clear what form it would take or what it would accomplish in light of last month’s Supreme Court’s decision, which rejected the explanation that Ross had given for adding the citizenship question. Ross had said he wanted to help the Justice Department gather information to help enforce the Voting Rights Act.
That justification, Roberts wrote for the majority, “seems to have been contrived.” But the chief justice left open the possibility that Ross could offer a genuine and permissible justification following the usual requirements of administrative law, which are complicated and time-consuming.
An executive order from the president could be an attempt to speed the process to allow expedited court review of a new justification. Or it could be an attempt to assert that no justification is needed beyond executive authority.
But the Constitution assigns the responsibility for overseeing a decennial census to Congress, not the president. And Congress has limited executive authority over the census, as the Supreme Court recognized.
“The taking of the census is not one of those areas traditionally committed to agency discretion,” Roberts wrote, meaning that it cannot be accomplished by unilateral executive action.
One of Trump’s answers on the census was particularly intriguing. Asked by a reporter why a citizenship question is needed, he said, “You need it for Congress for districting, you need it for appropriations, where are the funds going, how many people are there, are they citizens or not citizens? You need it for many reasons.”
In fact, congressional districts are drawn not on the number of citizens but on the total population. What was not clear was whether Trump misspoke because he did not know that or if he would favor a change in the way districts are drawn.
The Supreme Court ruled as recently as 2016 upholding total population as the basis for drawing districts but did not rule on whether other counting methods would be constitutional.