After a months-long legal battle over the addition of a "citizenship question" to the 2020 Census, the issue seemed to have finally reached a conclusion last week: The Supreme Court issued a soft-block of the question, explaining that the administration's justification for its addition was "contrived." Lawyers within the Trump administration conceded. The printers began to run, and the census questionnaire is, as you read this, being printed without any questions about citizenship.
But President Donald Trump took the issue to Twitter. "We are absolutely moving forward," he tweeted on Wednesday, declaring that his administration would continue its push to add the question. On Friday, Trump told reporters he was thinking of using an executive order to do so, and, later that same day, administration lawyers told a federal judge they would push forward on the question.
How would that be possible? First, there's the purely practical question of paper and ink: Creating the tens of millions of forms is a massive undertaking, and it has already begun. Asked how the additional question could be tacked on, Trump floated the idea of adding additional materials later on.
Then there's the legal question: Why would Trump's use of an executive order be any different than the administration's previous attempts to add the question? The answer comes down to whether or not Trump can convince the Supreme Court that his administration is acting in good faith.
Social scientists, former government officials, and advocates have long warned that the addition of a citizenship question would have a chilling effect on immigrant communities participating in the census. This could lead to an undercount of certain populations—like Latinxs and Asians—and could drastically alter redistricting efforts and divert billions in federal funds. But the Supreme Court's decision on the citizenship question had nothing to do with the question's effects. Instead, it dealt with the Trump administration's tactics.
Though the administration publicly claimed that it wanted to ask the question to help enforce the Voting Rights Act of 1965, multiple courts have found that officials wished to add the question regardless, and came up with this justification as a way to sell it to both the public and the judiciary. Evidence has emerged that the addition of the question could have come from a desire to diminish Latinx Democratic voters' electoral power and boost Republicans' chances in future elections.
In his majority opinion on the citizenship question, Chief Justice John Roberts wrote that the administration needs to be clear about its motivations and intentions in order for the public and the courts to accurately understand its actions. But, importantly, Roberts left open the possibility that, if the administration could come back with a firmer justification, he might let it go forward with the question.
That's where Trump's potential use of an executive order comes into play. The original citizenship question came out of the federal bureaucracy, from Trump officials in the Department of Commerce. Because those officials' motivations have become clouded and complicated in the eyes of the court, Trump's use of the executive order could sidestep the previous efforts to add the question, and offer a new avenue for adding it—along with a new rationale.
If Trump wants this strategy to work, he'll have to convince Roberts that his new rationale, whatever that may be, is not "contrived."