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Trump is considering issuing an executive order to keep citizenship question in the census

An executive order from Trump could argue that there’s a constitutional need for the citizenship question.

President Donald Trump sitting at his desk in the Oval Office.
President Donald Trump speaks to the media after signing a bill for border funding in the Oval Office at the White House on July 1, 2019, in Washington, DC.
Mark Wilson/Getty Images

President Donald Trump is reportedly considering issuing an executive order to add the citizenship question to the 2020 census.

On June 27, the Supreme Court ruled that the administration had provided contrived reasons to back the necessity of a citizenship question and gave them the opportunity to bring in a different rationale. But the Commerce Department determined that there wouldn’t be enough time to print the census forms for 2020 and decided to go ahead without the question — until Trump demanded on Wednesday that a path be found.

Trump’s executive order would argue that there is a constitutional need for the citizenship question, and could provide more weight to whatever other reasoning Commerce Secretary Wilbur Ross presents to the justices, according to the Washington Post.

Many, however, are skeptical if an executive order would be successful — or even legal. University of California Irvine law Prof. Rick Hasen wrote in a blog post that an executive order from the president is pointless when the issue at hand is whether there is a logical reason behind adding the question, not whether or not the president has the authority to include it.

“It seems stronger for that reason to come from the Commerce Secretary and the Census Bureau than declared in an executive order,” he wrote.

While even those within Trump’s administration are skeptical of an executive order changing the outcomes, former federal judge J. Michael Luttig told Axios:

“If the president of the United States were to issue an executive order, supported by his full Article II powers, directing that the citizenship question be included in the 2020 census, I believe the Supreme Court would affirm the constitutional power of the president to include the citizenship question in the census.”

Failing might not even be the key concern here: even if the executive order does not succeed, the administration could pass the blame onto Chief Justice John Roberts, Axios reported.

The fate of the citizenship question has been thrown into confusion over the past few days because of the Department of Justice’s inconsistent handling of the issue. On Tuesday, Ross confirmed that the 2020 census had been sent to the printers without the citizenship question.

It was a brief moment of victory for activists, who believed that the question would intimidate immigrant communities and stop them from participating, leading to an inaccurate headcount that would ultimately benefit Republicans when drawing congressional maps.

The next day, however, Trump contradicted his own administration and said reports of the question being dropped were inaccurate.

By late that afternoon, the Department of Justice made a complete reversal of their prior statement. In a separate lawsuit over the citizenship question in Maryland, Assistant Attorney General Jody Hunt said his department had been “instructed to examine whether there is a path forward.”

US District Judge George Hazel then issued a request to the administration to clarify matters. While the administration confirmed Friday afternoon that they were still planning to pursue the citizenship question, they were unable to provide any details on how they’d legally pursue the issue.