President Donald Trump is exploring using an executive order to move forward with the battle over the 2020 census question, sources familiar with the discussions told ABC News.
While the White House may be discussing the potential of an executive order, it is not yet clear how much that will factor into the rationale the Department of Justice lawyers are preparing to bring before the Maryland district judge by the Friday deadline, according to one administration official. Sources said that as of Thursday afternoon, an executive order was not part of the DOJ deliberations.
The Washington Post was first to report an executive order was under consideration.
"The Supreme Court ruled that it is legal to have a citizenship question in the census if there’s an appropriate explanation – and it should come as no surprise President Trump is looking at every option within his legal authority to add such a question." said White House deputy press secretary Hogan Gidley
In his majority opinion issued last week, Supreme Court Chief Justice John Roberts appeared to leave open the possibility that the administration could return and present a justification for adding the citizenship question as long as it wasn’t "contrived."
On Wednesday, the Justice Department reversed course on whether the 2020 census will be printed without a question on citizenship, after President Trump tweeted out a statement contradicting his own government's position.
Justice Department special counsel Joshua Gardner admitted to the Maryland district court that the president's tweet contradicted their earlier position and that they were still sorting out how to respond.
"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 a Wednesday afternoon call with U.S. District Judge George J. Hazel of Maryland.
"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," Hunt added.
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.
It's unclear what argument DOJ will ultimately make tomorrow.