The reversal came during a phone call with a federal judge in Maryland who had ruled against including the question, and, shortly afterward, in a filing to a New York federal judge who had also ruled against the question.
Joseph Hunt, assistant attorney general for the department’s civil division, said the administration was looking for a legal path forward after the Supreme Court last week froze the administration’s plan to include it on the survey sent to every U.S. household and said the administration needed to provide a better justification if it wants to add it.
Hunt told Judge George J. Hazel of the U.S. District Court for the District of Maryland that Justice lawyers had been “instructed to examine whether there is a path forward, consistent with the Supreme Court’s decision.” Hunt did not say who issued the instruction.
In a separate filing to Judge Jesse Furman of the Southern District of New York late Wednesday afternoon, Hunt wrote that the Justice and Commerce departments had been asked to “reevaluate all available options” and that Commerce may adopt “a new rationale” for including the question.
The government has said in multiple legal battles that it needed the question on the form to help enforce the Voting Rights Act. It is not clear what a new rationale would be.
The discussions came amid a day of legal turmoil triggered by a Wednesday morning tweet from Trump that his administration was “absolutely moving forward” with its plan.
“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 wrote. “We are absolutely moving forward, as we must, because of the importance of the answer to this question.”
On Thursday morning, Trump followed up with another tweet saying the citizenship question remained a priority.
“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,” he wrote. “Department of Commerce and the Department of Justice are working very hard on this, even on the 4th of July!”
Hazel said he had seen Trump’s Wednesday tweet, a transcript of the phone call shows, and ordered lawyers in the Maryland case to get on an afternoon call with him to try to clarify the government’s plan in a case that appeared to be resolved as of Tuesday night.
But even on that call, there was discord among Justice Department lawyers.
The transcript of the call shows that Joshua Gardner, who had led the government defense team in the cases before Hazel, said as far as he knew the whole issue had been resolved Tuesday. The question was removed and the form was being printed without it. The president’s tweet was the first he had heard otherwise.
“The tweet this morning was the first I had heard of the President’s position on this issue, just like the plaintiffs and Your Honor,” Gardner said to the judge, the transcript shows. “I do not have a deeper understanding of what that means at this juncture other than what the President has tweeted. But, obviously, as you can imagine, I am doing my absolute best to figure out what’s going on.”
Gardner turned the call over to Hunt, who said the plan was to try to move ahead.
Plaintiffs in the case expressed outrage Wednesday night over the backtracking.
“Under this administration, there’s no accounting for doubling down on stupid,” Thomas A. Saenz, president and general counsel of the Mexican American Legal Defense and Educational Fund, said in a statement. “Today’s reversal from yesterday’s certainty repeats the pattern of this entire affair, which began with Secretary Wilbur Ross — who inexplicably remains in the Cabinet — lying to Congress and the public about the reason for the late attempted addition of a citizenship question to Census 2020. MALDEF is fully prepared to demonstrate in court that racism is the true motivation for adding the question, and by doing so, to prevent the question from appearing on the Census.”
Dale Ho, director of the ACLU’s Voting Rights Project and a lead attorney for plaintiffs in the New York trial, vowed that “any attempt at an end run around the Supreme Court’s decision will be unsuccessful, and will be met swiftly in court.”
Hazel told the government it has until 2 p.m. Friday to put into writing that the question was dropped or tell him how it planned to defend against a legal challenge in his court contending the question arose from an intent to discriminate against minorities. If the government fails to reply by then, Hazel said, he will start moving forward with discovery in the case before him.
A claim of conspiracy and intent to discriminate had been sent back by an appeals court to Hazel after new evidence suggested the government had worked with a Republican redistricting strategist who saw the question as a way to provide a structural electoral advantage to white Republicans. Hazel had initially ruled that plaintiffs had not proved that charge, but after the new evidence came to light, he said he would reconsider it.
In its divided decision last Thursday, the Supreme Court said the commerce secretary had not provided an adequate explanation for adding the citizenship question. But the decision provided an opening for the agency to come up with a better justification.
Chief Justice John G. Roberts Jr. said that Ross deserved great deference in deciding how to run the census but that his explanation was “contrived.” The ruling affirmed a lower-court decision in which Furman, the New York judge, said the question could only be added by resolving its “legal defects.”
It was unclear after the Supreme Court ruling whether there would be time for the administration to come up with an acceptable justification to meet judicial muster.
The New York judge in his opinion said overcoming that hurdle would require gathering adequate information and statistics, submitting a report to relevant congressional committees and considering relevant evidence — as well as providing Ross’s real rationale.
Critics of the question say it is a partisan move intended to depress the response rate in immigrant communities and could result in an undercount of millions of Hispanics, who are more highly represented in Democratic areas.
Data from the census, which every U.S. household is required to fill out, is used by businesses and by the government to allocate hundreds of billions of dollars in federal spending per year. It is also used to determine congressional apportionment and redistricting. The form has not included a question related to citizenship since 1950.
Almost from the moment the Supreme Court ruled, Justice Department lawyers figured the administration would have no choice: The census would have to be printed without the citizenship question, people familiar with the matter said. That is because the deadline to print was just days away, and officials knew there would not be time to successfully push for some other outcome, according to the people, who, like others, spoke on the condition of anonymity to discuss the administration’s deliberations.
When Trump tweeted later that day that he had asked his lawyers about delaying the census, Justice Department lawyers were mystified, the people said. Doing so, in their view, would be illegal.
But the White House asked the Justice Department to explore that option and others that might allow the question to be added. They quickly told the White House that “it wasn’t realistic or tenable, given the time constraints and what the Supreme Court said,” one person familiar with the matter said.
“That’s our job to say, ‘It’s not going to work. That’s why it’s not going to work,’ ” the person said. “He’s allowed to ask the question.”
Even as Trump continued to talk publicly about the issue, officials at the Commerce Department proceeded as they thought they had to: by printing the Census, without the citizenship question.
At some point between Tuesday evening and Wednesday morning, though, the landscape shifted dramatically. Trump tweeted Tuesday night that he had “asked the Department of Commerce and the Department of Justice to do whatever is necessary to bring this most vital of questions, and this very important case, to a successful conclusion.” The next morning, he sent the more forceful tweet.
By then, Justice Department officials were scrambling to implement a directive to reverse course — and find a way to put the citizenship question back on the census, knowing it could be both practically and legally impossible, people familiar with the matter said. As of 6:30 p.m. Wednesday, 2020 Census forms were still being printed — without the citizenship question, a person familiar with the matter said. Justice Department officials, meanwhile, were looking for a way to abate the Supreme Court’s concern and include the question on that census, the person said.
The person declined to say what those options might be, or how the question might be included — given forms are already being printed. Conservative radio host and former administration lawyer Hugh Hewitt wrote on Twitter that a “new executive order” from Trump to his commerce secretary directing him to “add such questions for particular reasons” would render moot the prior dispute and perhaps allow for the question to be added.
A White House official confirmed Wednesday evening that the presses are running on the forms without the question, and a second government official confirmed it.
A Justice Department spokeswoman declined to comment. The Commerce Department did not respond to requests for comment Wednesday.
A Trump adviser who regularly speaks to the president said Trump was frustrated after government lawyers determined there was no way to win the case and released statements yesterday saying the battle was over. The adviser said Attorney General William P. Barr had agreed and recently confirmed this to the president.
One senior administration official said the fracas is likely to further depress the standing of Ross, who has somewhat regularly drawn the president’s ire. It could also be a test for Barr’s relationship with the president, though Trump usually effusively praises Barr, this official said.
In the Supreme Court’s splintered ruling, Roberts wrote that federal agencies must offer “genuine justifications for important decisions, reasons that can be scrutinized by courts and the interested public.” He was joined by the court’s four liberal justices.
Opponents of the question said they worry the latest reversal could have the effect of further scaring immigrants away from filling out the form, even if it ultimately doesn’t include the question.
“This administration’s flagrant disregard of court orders is appalling, and will result in the same kind of misinformation that leads our communities to be reluctant to participate in the Census, at a time when the Census Bureau should be actively encouraging everyone’s full participation,” Denise Hulett, national senior counsel at MALDEF and a lead attorney in the Maryland trial, said in a statement.
Ann E. Marimow and Colby Itkowitz contributed to this report.