In a Wednesday afternoon conference call with U.S. District Judge George J. Hazel of Maryland pressed DOJ lawyers on how they would square the president's tweet saying the government was "absolutely moving forward" in including the question, with the government's position announced just a day before that there would be no citizenship question on the 2020 census.
"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 us to include the citizenship question on the census," assistant attorney general for the Justice Department's civil division, Jody Hunt, said on the call. "We think there may be a legally available path under the Supreme Court's decision. We're examining that, looking at near-term options to see whether that's viable and possible."
At the start of the call, Justice Department special counsel Joshua Gardner admitted to the court that the president's tweet contradicted their earlier position and that they were still sorting out how to respond.
"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. "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."
However, Gardner added that the Census Bureau has not stopped its current process of printing the census without a citizenship question, as the government continues to weigh what options it may have.
Hazel ordered the government to make clear whether the citizenship question would appear on the census by Friday or tell the court how it plans to move forward to comply with the Supreme Court's ruling.
The ACLU, a plaintiff in the case, released a statement Wednesday night, saying in part, "Despite DOJ’s repeated statements that the census questionnaire cannot be changed after June 30, the administration is now examining whether it can concoct a ‘new rationale’ for its citizenship question. The answer is no, it cannot — at least not a legal one. Any attempt at an end run around the Supreme Court’s decision will be unsuccessful, and will be met swiftly in court."
The Census Bureau had previously set a target date of early July to begin printing the questionnaire in order to have it prepared for delivery to the American public by the April 1 deadline.
Rep. Jamie Raskin, the chairman of the Subcommittee on Civil Rights and Civil Liberties at the House Oversight Committee, announced on Wednesday afternoon that the director of the U.S. Census Bureau, Dr. Steven Dillingham, will testify at a hearing on July 24, 2019, on the status of planning and preparations for the 2020 Census.
"It is time for the Census Bureau to move beyond all the outside political agendas and distractions and devote its full attention to preparing for the 2020 Census," Raskin, D-Md., said. "This hearing will examine the current status of the Bureau’s readiness for the Census next year — especially in areas where the Bureau may be falling behind such as IT, security and public education."
Raskin expressed concern that testimony from the nonpartisan Government Accountability Office shows the Census Bureau is at risk of missing key milestones, "including partnership specialist hiring and the correction of high-risk security vulnerabilities, and lacks a proper system for tracking and implementing crucial security recommendations from the Department of Homeland Security." He also doubted the Bureau’s reliance on new technological methods for conducting the count that he believes are undertested and potentially vulnerable to security breaches.
On Monday, Trump said he was still "looking at" the possibility of trying to delay the census from being printed after the Supreme Court ruled last Thursday to block the administration from adding the question to the 2020 questionnaire.
Legal experts argue that the president doesn't have the constitutional power to do so, pointing to Article 1, Section II of the Constitution, which grants Congress the authority for conducting and overseeing the census. Title 13 of the U.S. Code delegated that authority to the Commerce Department but outlines specific procedures they have to follow under law, like the date that the census must be delivered.
"The census is set by statute so he doesn't have the unilateral authority to delay it," Kelly Percival, counsel at the Brennan Center for Justice told ABC News last week.
In an email to plaintiffs of the case Tuesday, DOJ trial attorney Kate Bailey said "the printer has been instructed to begin the printing process."
Hazel made note of the contradiction in the Wednesday conference call, and pressed the government's lawyers on how he could trust that they officially speak for the president moving forward.
"If you were Facebook and an attorney for Facebook told me one thing, and then I read a press release from Mark Zuckerberg telling me something else, I would be demanding that Mark Zuckerberg appear in court with you the next time because I would be saying I don't think you speak for your client anymore," Hazel said.
The Supreme Court's ruling last week seemed to leave open the possibility that the administration could make another attempt to add the question, if it provided a different explanation, after Chief Justice John Roberts said the Commerce Department's initial rationale "seems to have been contrived."
"I respect the Supreme Court but strongly disagree with its ruling regarding my decision to reinstate a citizenship question on the 2020 Census," Commerce Secretary Wilbur Ross wrote in a statement on Tuesday. "The Census Bureau has started the process of printing the decennial questionnaires without the question. My focus, and that of the Bureau and the entire Department is to conduct a complete and accurate census."