The Trump administration on Friday refused to back down over its bid to put a contentious citizenship question on the 2020 USA census, meaning that a court case will move forward over whether officials were motivated by racial bias in seeking to add it.
But the department says it's unclear how that will happen. Top Justice Department officials, including Attorney General Bill Barr, became aware of the pivot before Trump tweeted about it, but lower level attorneys at the Justice Department, including the lawyers who were due in front of a federal judge in Maryland on Wednesday, were not aware of the shift.
Also on Friday, President Trump said he is "very seriously" considering an executive order that would place a citizenship question on the 2020 census. "I believe the Supreme Court would affirm the constitutional power of the president to include the citizenship question in the census", J. Michael Luttig told Axios.
U.S. District Judge George Hazel ordered proceedings to continue after lawyers with the Justice Department confirmed in a court filing Friday that they are still exploring possible ways to add the question - "Is this person a citizen of the United States?" - to the census form.
"We're thinking about doing that", Trump told reporters at the White House Friday.
An executive order would not, by itself, override court rulings blocking the inclusion of the citizenship question.
Voters resonate with the basic premise of a census citizenship question and if the courts ruled against President Trump again on the issue, it'll aid him politically.
Democrats fear that if President Trump is successful, districts with high numbers of immigrants - such as major cities - will lose congressional representation, since census data is used to determine the distribution of federal funding and the number of congressional seats.
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Government lawyers said only that the justice and commerce departments had been "instructed to examine whether there is a path forward". The others are in NY and California.
"Number one, you need it for Congress - you need it for Congress for districting", Trump said.
"Census Bureau has started the process of printing the decennial questionnaires without the question", he said.
Trump on Friday said the "number one" reason for adding the question was for the drawing of electoral districts, which is not the legal reason the administration originally gave for adding it.
But in the Supreme Court's decision last week, Chief Justice John Roberts joined the court's four more liberal members in saying the administration's current justification for the question "seems to have been contrived". In order to obtain expedited consideration before the Supreme Court, the administration had said it had a June 30 deadline to resolve the issue.
In an extraordinary move, the 4th Circuit sent the case back to the trial court to reconsider whether the push for the citizenship case was motivated by racial discrimination in light of the new evidence.
Justice lawyer Josh Gardner still pointed out on Wednesday that "the Census Bureau is continuing with the process of printing the questionnaire without a citizenship question, and that process has not stopped".
But the question's opponents say recently discovered evidence from the computer files of a Republican redistricting consultant who died previous year shows that, far from helping minority voters, discrimination against Hispanics was behind the push for the citizenship question.
The administration argued for evidence gathering for the Maryland-based lawsuits to be put on hold while the administration continues searching for a new reason to add the question. More than 425,000 people have already started applying for the half million positions needed for the 2020 Census.