Possible ‘Legally Available Path’ to Include Citizenship Question on 2020 Census, DOJ Attorney Says

By Zachary Stieber

There might be a way to include the question about a respondent’s citizenship on the 2020 census, a Department of Justice attorney said after President Donald Trump told the agency to “do whatever is necessary” to get the question added to the census.

Trump later called stories about the census being printed without the question “FAKE!” and said his administration was still looking into how to get the question added. In late June, he said the census would be delayed until the question was added.

In a teleconference with a judge on July 3 after Trump’s Twitter posts were sent out, department attorneys said they were working on examining the issue.

“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” said Joseph Hunt, assistant attorney general for the department’s Civil Division, referring to the Supreme Court saying the justification for adding the question was suspect.

“We think there may be a legally available path under the Supreme Court’s decision,” he added. “We’re examining that, looking at near-term options to see whether that’s viable and possible.”

Trump's July 4 won't air on MSNBC
President Donald Trump talks during a signing ceremony in the Oval Office of the White House in Washington on July 1, 2019. (Carolyn Kaster/AP Photo)

Hunt’s comments to the judge came after Joshua Gardner, another assistant attorney general at the department, said that “this is a very fluid situation which we are trying to get our arms around.”

“I can’t possibly predict at this juncture what exactly is going to happen,” he said.

Attorneys for the plaintiffs in the case argued that U.S. District Court Judge George Jarrod Hazel, who was appointed by President Barack Obama, should issue an order blocking Trump from talking about the possibility of including the question on the census.

“The president’s tweet has some of the same effects that the addition of the question would in the first place and some of the same effects on the 18-month battle that was just waged over the citizenship question. It leaves the immigrant communities to believe that the government is still after information that could endanger them,” argued Denise Hulett, an attorney for La Union Del Pueblo Entero.

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Hazel was perplexed, expressing his disbelief that the attorneys wanted him to order the president what not to post on Twitter about.

“I assume, although maybe I’m wrong about this, that the parties aren’t suggesting I can enjoin the President of the United States from tweeting things. Maybe you are suggesting that,” he said, noting that perhaps the attorneys were asking him to require Census Bureau employees not to talk about the question potentially being added. “This is an odd place for the judiciary to be,” he said.

After hearing from the Department of Justice, Hazel said he expected to hear one of two things by Friday at 2 p.m.

“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,” he said.

Forms for Census 2010
Forms for Census 2010 in Washington on April 1, 2010. (Alex Wong/Getty Images)

Denying a request to move the date to Monday because of the July 4 holiday, Hazel again noted the unusual nature of the situation.

“I’ve been told different things, and it’s becoming increasingly frustrating. 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,” he said.

“I think I’m actually being really reasonable here.”