President Donald Trump said Friday that he is “thinking of” issuing an executive order to add a controversial citizenship question to the 2020 Census, telling reporters at the White House that he is exploring four or five different options to move forward.
Trump raised the possibility that some kind of addendum could be printed separately after further litigation of the issue, a move would almost certainly carry additional costs and may not be feasible, according to census experts.
“We’ll see what happens,” Trump said. “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.”
Census experts say that among other concerns, such an addendum would likely violate the bureau’s strict rules on testing a question, which include considering how the placement of a question on the form affects respondents’ likelihood of filling it out.
Trump’s comments came as government lawyers scramble to find a legal path to carry out the president’s wishes despite their conclusions in recent days that no such avenue exists.
Census officials and lawyers at the Justice and Commerce departments scrapped holiday plans and spent Independence Day seeking new legal rationales for a citizenship question that critics say could lead to a steep undercount of immigrants, which could limit federal funding to some communities and skew congressional redistricting to favor Republicans.
A federal judge in Maryland overseeing one of three lawsuits on the citizenship question has given the Trump administration until 2 p.m. Friday to explain how it intends to proceed. The government has begun printing the census forms without the question, and that process will continue, administration officials said.
The question had seemed settled after the Supreme Court ruled last week against the Trump administration. As late as Tuesday evening, Commerce Secretary Wilbur Ross, who oversees the census, said the administration was dropping its effort and was printing the census forms without the citizenship question.
But Trump, in tweets Wednesday and Thursday, said he was not giving up. He tweeted Thursday morning: “So important for our Country that the very simple and basic ‘Are you a Citizen of the United States?’ question be allowed to be asked in the 2020 Census. Department of Commerce and the Department of Justice are working very hard on this, even on the 4th of July!”
The reversal came after Trump talked by phone with conservative allies who urged him not to give up the fight, according to a senior White House official and a Trump adviser, who both spoke on the condition of anonymity.
In the Supreme Court’s splintered ruling last week, Chief Justice John Roberts said the government had provided a “contrived” reason for wanting the information, seemingly leaving open the door for the government to offer a new justification and see whether it satisfies the court. An executive order from Trump and a new rationale given by Ross on the basis of that order could give the administration something to take back to the justices.
Trump told reporters Friday that the White House was surprised by the Supreme Court decision and that he found it “very shocking” that the citizenship question could not be included.
Trump said he believes the rationale provided by Ross “can be expanded very simply.”
“He made a statement,” Trump said of Ross. “He wrote something out. The judge didn’t like it. I have a lot of respect for Justice Roberts. But he didn’t like it, but he did say come back.”
Thomas Saenz, president and general counsel of the Mexican American Legal Defense and Educational Fund, which represents some of the plaintiffs challenging the question, derided the idea that an executive order could brush aside the 15 months of litigation that culminated in the high court’s ruling.
“Despite what yesterday’s military show may have looked like, the United States is not a Soviet bloc dictatorship,” Saenz said, referring to the “Salute to America” event that Trump staged on Thursday. “Executive orders do not override decisions of the Supreme Court. Separation of powers remains, as it has been for over 200 years, a critical part of our constitutional scheme.”