A top Justice Department lawyer said Wednesday the agency is trying to find a "legally available path" to include a citizenship question on the 2020 census after President Donald Trump tweeted that "We are absolutely moving forward" — despite a Supreme Court ruling and public statements from the Justice and Commerce departments to the contrary.
The lawyer's statement represented a complete reversal of the government's position from Tuesday, when officials said they would honor the high court's ruling and begin printing census forms without the citizenship question. The lawyer said the reversal was solely because of Trump's tweet, which Justice Department officials are still trying to interpret.
Outside groups that had sued the government said the question was designed to reduce the numbers of immigrants and minorities who are counted in the census, which could have the effect of benefiting Republicans politically. The Supreme Court said the government had failed to justify the need for the question, and the matter seemed settled until Trump weighed in Wednesday morning.
"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 tweeted.
“We are absolutely moving forward, as we must, because of the importance of the answer to this question,” Trump added.
It wasn’t immediately clear whether Trump’s tweet meant he intended to defy the plans to print the survey without the question, or was arguing to continue the legal case in support of including the question in the future.
On an emergency conference call in the underlying federal court case in Maryland on Wednesday, Assistant Attorney General for the Civil Division Joseph Hunt told the judge the situation is "fluid."
"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 to include the citizenship question on the census. We think there may be a legally available path under the Supreme Court's decision," Hunt said.
Hunt spoke after another department lawyer, Josh Gardner, told U.S. District Judge George Hazel that Trump's tweet had caught him off-guard, and that he'd been honest with the judge when he told him on Tuesday that the question was no longer a question.
"What I told the court yesterday was absolutely my best understanding of the state of affairs," Gardner said. "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. 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."
He also told the judge he'd confirmed that "the Census Bureau is continuing with the process of printing the questionnaire without a citizenship question, and that process has not stopped."
Denise Hulett, a lawyer for the Mexican American Legal Defense and Education Fund, a plaintiff in the case, told the judge that that Trump's tweet could have the same effect as the citizenship question itself, leading immigrants to believe the government is after information that could endanger them. As a result, she asked for either an agreement by the government or an order from the court that would prevent misinformation about the census from being distributed, possibly including an injunction or a new court proceeding.
The judge ordered an update by 2 p.m. ET Friday, and suggested that if he were not satisfied, he could issue an order allowing the plaintiffs' discrimination and civil conspiracy case to proceed.
When Gardner asked if the hearing could be postponed until Monday because of Independence Day, the judge answered, "No."
Afterwards Thomas Saenz, president and general counsel of the Mexican American legal group, said the administration was "doubling down on stupid."
"Unfortunately, and embarrassingly for our nation, 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," Saenz said in a statement, adding his organization "is fully prepared to demonstrate in court that racism is the true motivation for adding the question."
NBC News has reached out to the White House for comment.
Ross said in a statement Tuesday that the Census Bureau had started printing the decennial questionnaires without the question, although he “strongly" disagreed with the high court's ruling.
"My focus, and that of the Bureau and the entire Department is to conduct a complete and accurate census,” Ross said Tuesday.
In addition, a Justice Department trial attorney sent an email to an opposing counsel in the citizenship case that confirmed the government was moving forward without the question.
"The decision has been made to print the 2020 Decennial Census questionnaire without a citizenship question, and that the printer has been instructed to begin the printing process," the Justice Department lawyer wrote, according to a copy of the email posted online by one of the attorneys involved.
The director of the Census Bureau, Dr. Steven Dillingham, will testify before the House Subcommittee on Civil Rights and Civil Liberties about the status of the agency's planning and preparations for the 2020 census, the panel's chairman, Rep. Jamie Raskin, D-Md., said Wednesday.
Dillingham is scheduled to appear July 24, Raskin announced.
Rep. Grace Meng, D-N.Y., a member of the House Appropriations Committee and frequent critic of the Trump administration's efforts to add the citizenship question, said in a statement that Trump's tweet "totally contradicts what his own administration said including Commerce Secretary Wilbur Ross who stated that the Census Bureau has started the process of printing the questionnaires without the question."
"We need to move forward, and now do everything humanly possible to obtain a complete and accurate census count," Meng said.
New York State Attorney General Letitia James added, "Another day, another attempt to sow chaos and confusion."
"The Supreme Court of the United States has spoken, and Trump’s own Commerce Department has spoken.," James said. "It’s time to move forward to ensure every person in the country is counted."
Legal and immigrant advocacy groups that had been involved with or were closely monitoring the developments of the census case said they were worried that Trump’s latest tweet would cast a wave of confusion over the census that could end up in lower participation rates.
Vanita Gupta, the president and CEO of the Leadership Conference on Civil and Human Rights, noted in a statement that the Justice Department and Commerce secretary have said the 2020 census forms are being printed without the citizenship question.
"We’re not going to be distracted by political games and instead remain focused on the work to ensure a fair and accurate count,” Gupta said.
JoAnn Yoo, the executive director of the Asian American Federation, which has made efforts to encourage Asian Americans to participate in the census, said she was holding to the Commerce Department’s statement Tuesday.
“As we understand, the Commerce Department assured the American people that the census forms went to print yesterday without the citizenship question,” she said. “The Asian American Federation is planning for the upcoming 2020 census based on that guarantee and the Supreme Court ruling that the citizenship question cannot be added to the questionnaire.”
Last week, the Supreme Court issued a ruling that blocked the administration from adding the question, saying it did not provide a sufficient rationale for including it in the census. Opponents of adding the question have said it was designed as a Republican effort to depress response rates in largely Democratic immigrant communities.
In a 5-4 decision, with Chief Justice John Roberts joining the four liberal justices, the court majority said the government has the right to ask a citizenship question, but needs to properly justify changing the longstanding practice of the Census Bureau. The Trump administration's justification was "contrived," Roberts wrote, and did not appear to be the genuine reason for the change. The last time the bureau asked a citizenship question on the official form was in 1950, when immigration rates had slowed and survey techniques improved in counting foreign-born residents.
In March, Ross had announced that the Census Bureau would add the question, with the administration saying it was "necessary for the Department of Justice to protect voters" and enforce parts of the Voting Rights Act.
A coalition of 18 states, several of the nation's largest cities and immigrant rights groups then sued to block the Trump administration from adding the question, arguing it would make immigrants reluctant to respond to the census mailer. Three federal judges then ruled against the administration before it arrived at the Supreme Court.
Following the Supreme Court's ruling, Trump suggested that the bureau could delay the census in order to eventually add the question, which legal scholars noted could run afoul of the constitutional mandate that a count be performed every 10 years.
