Trump digs in on citizenship question after Supreme Court setback

President TrumpDonald John TrumpGiuliani says he is unaware of reported federal investigation Louisiana's Democratic governor forced into runoff Lawmakers focus their ire on NBA, not China MORE is already seeking to move past his loss Thursday in the Supreme Court over the inclusion of a citizenship question on the 2020 census.

In a 5-4 ruling, the justices stopped the question from appearing on the census for the time being. Chief Justice John Roberts, joined by the court’s liberal bloc, found that the Trump administration’s argument that it wanted to add the question to enforce the Voting Rights Act wasn’t in line with the evidence presented in the case.

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However, Roberts left the door open for the administration to still ask such a question, finding that Commerce Secretary Wilbur RossWilbur Louis RossOvernight Energy: Dems subpoena Perry in impeachment inquiry | EPA to overhaul rules on lead contamination tests | Commerce staff wrote statement rebuking weather service for contradicting Trump Commerce staff drafted statement rebuking weather service for contradicting Trump's hurricane predictions US, in reversal, does not support Brazil's entry to OECD MORE had the authority to include it on the census.

Trump indicated that he’s willing to take that opening: He tweeted on Thursday that he is asking administration lawyers whether he can delay the census until the justices are “given additional information from which it can make a final and decisive decision on this very critical matter.”

Legal experts were doubtful that Trump would delay the census, as the decennial survey is mandated by the Constitution.

Even if the Supreme Court were to accept a new argument from the administration that the question can be added, it could still be struck down by a lower court judge who is currently weighing whether there was discriminatory intent behind the question’s addition.

In the Supreme Court ruling, Roberts sided with the court’s other conservative justices in finding that Ross has the power to add the citizenship query to the 2020 survey.

But he and the liberal justices agreed that the administration's reasoning for adding the question didn’t line up with the facts laid out in the evidence.

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"Altogether, the evidence tells a story that does not match the explanation the secretary gave for his decision," Roberts wrote in the opinion.

The court’s liberal wing went one step further, with Justice Stephen BreyerStephen BreyerGorsuch: Americans should remember political opponents 'love this country as much as we do' McConnell: GOP would 'absolutely' fill Supreme Court seat next year Juan Williams: McConnell's Supreme Court hypocrisy MORE writing in a concurring opinion that they believed Ross violated federal administrative law in how he added the question to the census — a conclusion that several lower courts also reached.

Jennifer Nou, a law professor at the University of Chicago, said Roberts may have been acting in a way meant to preserve the court’s reputation. The chief justice is considered by many to be an institutionalist who is concerned about any perception that the court may be acting politically.

By sending the matter back to the Commerce Department and a lower court, the justices avoid having to make the final call on the citizenship question, at least for now.

Nou also said that it could be “incredibly difficult” for the administration to craft a rationale for the question that aligns with the evidence in the case and that a court will accept.

But she didn’t cast the question’s inclusion on the census as an impossibility: Nou said that, if the administration’s lawyers are able to successfully argue that the question is needed for purposes like immigration, the case could make its way through the courts in time for the question to make it on the 2020 census.

The administration has repeatedly argued in court that it needs to start printing census materials by July 1 in order to get the survey out on time. But the president's tweet gives officials an out to delay printing those documents and could potentially extend the court battle long enough for the Supreme Court to reconsider the citizenship question during its fall term, which begins in early October.

Ekow Yankah, a professor at the Cardozo School of Law, said Thursday's ruling could still end up being a victory for the administration. He said the justices might be indicating how officials can argue that actions viewed by others to be discriminatory should be upheld under the law.

“They’re going to give road maps on how to get this done rather than be any sort of real bulwark,” Yankah said.

But new evidence relating to the question’s creation raised red flags over the administration’s true intentions behind asking about citizenship status.

Documents obtained from the hard drives of late GOP redistricting strategist Thomas Hofeller indicate he played a previously undisclosed role in orchestrating the question, including potentially assisting in the drafting of a memo used by Trump officials to argue for the question’s inclusion.

That evidence also shows that he conducted an unpublished study in 2015 that found asking about citizenship would help Republicans.

Those documents weren't cited in Roberts's ruling Thursday. But the justices were scheduled to meet after the opinion was issued and discuss whether the case should be remanded to a lower court so that the documents can be officially added to the record.

Similar documents pertaining to Hofeller are being weighed in federal court in Maryland, presenting another opportunity to block the question on different legal grounds.

Judge George Hazel ruled against the question earlier this year, finding that the process behind its inclusion violated federal law.

But Hazel, an Obama appointee, is now considering whether, in light of the Hofeller evidence, there was a discriminatory intent behind the question’s addition. 

That's a different legal question than the one the Supreme Court ruled on Thursday, and it could trigger an entirely different set of appeals and court fights over the census.

The debate over the citizenship question isn’t limited to the courts. The House Oversight and Reform Committee voted earlier this month to hold Ross and Attorney General William BarrWilliam Pelham BarrDemocratic lawmaker says Barr's reported meeting with Murdoch should be investigated Trump to meet Italian president at White House next week Barr criticizes LGBT curriculums without opt-outs MORE in contempt for failing to comply with congressional subpoenas on the question.

Committee Chairman Elijah CummingsElijah Eugene CummingsCracks emerge in White House strategy as witness testifies Overnight Defense: Pentagon insists US hasn't abandoned Kurds | Trump expands sanctions authority against Turkey | Ex-Ukraine ambassador says Trump pushed for her ouster On The Money: Trump announces limited trade deal with China | Appeals court rules against Trump over financial records | Trump expands authority to sanction Turkey MORE (D-Md.) heralded the court’s ruling on Thursday and called for the Commerce Department to start printing census materials “immediately without any further delay so the census can be ready to count every single person as required by the Constitution.”

He said that any other rationale for collecting citizenship data through the census for a purpose other than the application of the Voting Rights Act would “directly contradict” Ross’s testimony before Congress.

“I urge Secretary Ross and Attorney General Barr to finally comply with our Committee’s bipartisan subpoenas and produce all of the documents they are withholding so the House of Representatives will not be forced to vote on the contempt resolution currently pending before it,” Cummings said.

Rep. Jim JordanJames (Jim) Daniel JordanIn testimony, Dems see an ambassador scorned, while GOP defends Trump Ex-Ukraine ambassador arrives to give testimony Graham threatens to call Volker to testify if Democrats don't release testimony MORE (R-Ohio), the ranking member on the Oversight panel, alleged that Democrats "went to work to influence the Supreme Court's consideration."

The justices did not weigh the congressional probe in their ruling.

"It should not be controversial to ask how many American citizens are in the United States of America. The only people who don't want to know are Democrats in Congress," Jordan said in a statement Thursday.

Updated at 2:06 p.m.