2020 census form. Photo: Maria Dryfhout/Shutterstock.com

The Trump administration is still considering asking about citizenship on the 2020 U.S. Census, despite a decision last month from the U.S. Supreme Court ordering that the national survey not include such a question, attorneys from the U.S. Department of Justice said Wednesday.

Assistant Attorney General Joseph Hunt said during a telephone conference with a federal judge in Maryland that they've been ordered to see if they can still include the question in a way that wouldn't contradict the high court's ruling.

“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,” Hunt said, according to a transcript. “We think there may be a legally available path under the Supreme Court's decision.”

If they do identify a legal path forward for asking the question, their next step will be to file a motion with the Supreme Court to request instructions to simplify and expedite the remaining litigation and move the process forward, Hunt said.

Hunt revealed the plan during a telephone conference that was spurred Wednesday morning by a tweet from President Donald Trump, which seemed to indicate his administration planned to pursue a question about immigration status on the national survey, despite the Supreme Court's decision.

A different attorney for the Trump administration said during the hearing that they didn't know the extent of the president's position on the issue until it was posted on the social media website.

“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,” said Joshua Gardner, an attorney with DOJ. “I do not have a deeper understanding of what that means at this juncture other than what the President has tweeted.”

Gardner confirmed, as the U.S. Department of Commerce did Tuesday, that the federal government has started to print the census and that it does not include a question asking about a respondent's citizenship.

“I can tell you that I have confirmed that the Census Bureau is continuing with the process of printing the questionnaire without a citizenship question, and that process has not stopped,” Gardner said.

U.S. District Judge George Hazel of the District of Maryland gave attorneys for the Trump administration until Friday afternoon to enter into a formal agreement stating, in no uncertain terms, that next year's census would not ask about citizenship. If that doesn't happen, they'll be back in court to continue the litigation.

Trump's tweet, posted Wednesday morning, had caused such a stir that Hazel called an emergency conference four hours later between the Trump administration and plaintiffs who had sued the government over the addition of the citizenship question.

There appeared to be a conflict early Wednesday as to whether the U.S. Department of Commerce had actually started printing the census without a question about citizenship, like they said they had Tuesday, or if it was planning to delay that process to pursue other avenues.

U.S. Commerce Secretary Wilbur Ross had said in a statement late Tuesday that his agency, which oversees the Census Bureau, had started the process of printing the survey without the question.

That decision didn't come as a surprise. The U.S. Supreme Court, in a ruling handed down late last month, was skeptical of the federal government's motive for seeking to ask about citizenship on the census and ordered that it not be included, at least for the time being, on the upcoming national survey.

“I respect the Supreme Court but strongly disagree with its ruling regarding my decision to reinstate a citizenship question on the 2020 Census,” Ross said. “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.”

His statement was in response to reports that attorneys from the U.S. Department of Justice had informed parties involved in litigation over the citizenship question, including New York, that the agency was moving forward with the census without asking about immigration status.

New York Attorney General Letitia James had confirmed receipt of that message yesterday, and followed it with a statement celebrating the decision.

But that was short-lived. Trump posted on Twitter on Wednesday morning that reports of his administration dropping the citizenship question from the census were “fake.”

“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 wrote. “We are absolutely moving forward, as we must, because of the importance of the answer to this question.”

It was unclear what Trump meant by “moving forward,” which was the catalyst for Wednesday's hearing.

U.S. District Judge Jesse Furman of the Southern District of New York had also ordered the Trump administration to immediately file a response, based on the outcome of the hearing, to a letter from the New York Attorney General's Office asking for an explanation of what Trump meant in his tweet. Attorneys for the federal government confirmed in that response that they were still considering whether they could ask about citizenship on the census within the confines of the Supreme Court's decision.

“The Departments of Justice and Commerce have now been asked to reevaluate all available options following the Supreme Court's decision and whether the Supreme Court's decision would allow for a new decision to include the citizenship question on the 2020 Decennial Census,” the response said. “The agencies are currently performing the analysis requested, and, if they determine that the Supreme Court's decision does allow any path for including such a decision, DOJ may file a motion with the Supreme Court seeking further procedural guidance for expediting litigation on remand.”

Before the response was filed, James criticized the federal government for appearing to cause confusion on the future of the census.

“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.”

Her office led a coalition of states last year in a lawsuit against the Trump administration over the citizenship question. They had alleged the question was motivated by racial animus and a long-term strategy by the Trump administration to give Republicans more power in Congress.

That lawsuit was combined with another against the citizenship question from the New York Immigration Coalition last year for trial, which was held in the U.S. District Court of the Southern District of New York.

They've argued that asking about citizenship on the census would lower turnout for the survey in areas with high immigrant populations like New York. That could lead to a population undercount, they claimed, which could have resulted in fewer seats in Congress for those states. It could have also meant less federal funding in areas like education and health care.

The U.S. Supreme Court, in striking down the question last month, criticized the administration's methods of adding the question to the survey.

“Reasoned decision-making under the Administrative Procedure Act calls for an explanation for agency action,” Chief Justice John Roberts Jr. wrote. “What was provided here was more of a distraction.”

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