Justice says it is reviewing 'all available options' on census

Justice Department lawyers told a federal judge Friday that the Trump administration is reviewing “all available options” for adding a controversial citizenship question to the 2020 census after the Supreme Court blocked the query’s inclusion last week.

“The Departments of Justice (DOJ) and Commerce have been asked to reevaluate all available options following the Supreme Court’s decision and whether the Supreme Court’s decision would allow for a new decision to include the citizenship question on the 2020 Decennial Census,” Justice Department lawyers wrote in a filing Friday.

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“In the event the Commerce Department adopts a new rationale for including the citizenship question on the 2020 Decennial Census consistent with the decisions of the Supreme Court, the Government will immediately notify this Court so that it can determine whether there is any need for further proceedings or relief,” they wrote.

The filing came hours after President TrumpDonald John TrumpLawmakers release defense bill with parental leave-for-Space-Force deal House Democrats expected to unveil articles of impeachment Tuesday Houston police chief excoriates McConnell, Cornyn and Cruz on gun violence MORE told reporters at the White House he was mulling an executive order to add the citizenship question to the 2020 census among “four or five” options under consideration by the administration. The filing makes no specific mention of an executive order.

Judge George Hazel, an Obama appointee in Maryland who is overseeing one of three federal lawsuits over the citizenship question, had given the Trump administration until Friday at 2 p.m. to tell the court how they would proceed with respect to the citizenship question.

The filing Friday indicates that the 2020 census is currently being printed without a citizenship question. Trump said earlier Friday that the administration may go forward with printing and add the question in the form of an addendum.

Last week, the Supreme Court ruled 5-4 against the Trump administration and blocked the question from being included on the census for now, finding the administration’s argument that the question is necessary to enforce the Voting Rights Act to be unsatisfactory. The justices directed the administration to come up with a new legal rationale for adding the question.

Critics of the question argue that its addition to the census could result in a lower number of responses from Hispanics, which could reduce funding for certain congressional districts or cause them to be drawn in ways that favor Republicans.

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Trump administration officials initially planned to move forward with the printing of the 2020 census without the citizenship question after the Supreme Court ruling.

However, Trump sparked a firestorm with a series of tweets Wednesday saying he was saddened by the court’s decision and that he had ordered the Justice and Commerce departments to do “whatever is necessary” to add the question to the census.

Justice Department attorney Joseph Hunt told the judge during a teleconference later Wednesday that the department had 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 also said administration officials believed there to be potentially a “legally available path” under the Supreme Court’s decision, according to a transcript of the teleconference, but he offered few details on what that might be.

Friday’s filing reiterates those points and provides no timeline for when the administration may announce a new rationale for the citizenship question. It also acknowledges that the plaintiffs are free to challenge any new rationale if and when it is presented by the administration.

“Any new decision by the Department of Commerce on remand providing a new rationale for reinstating a citizenship question on the census will constitute a new final agency action, and Plaintiffs will be fully entitled to challenge that decision at that time,” the Justice Department lawyers wrote.

Hazel is reviewing whether there was a discriminatory intent behind the citizenship question’s addition to the census — a different question than that addressed by the Supreme Court.

It’s possible the Maryland case could be dropped if the administration certifies that the question won’t appear on the census.

Meanwhile, lawyers for the plaintiffs asked in a separate filing to immediately move forward with litigation challenging the citizenship question on equal protection and civil rights claims based on recently surfaced files belonging to the late GOP strategist Thomas Hofeller.

The plaintiffs objected to the government’s efforts to hold discovery “in abeyance” pending a decision on a new legal rationale for the question.

Hazel approved the plaintiffs' proposed discovery schedule later Friday afternoon.

“The discovery contemplated by the Court related to the recently discovered evidence in this case goes directly to that issue,” Hazel wrote in the order. “Regardless of the justification Defendants may now find for a ‘new’ decision, discovery related to the origins of the question will remain relevant.”

Updated at 4:01 p.m.