The Census Bureau, along with Justice Department lawyers, responded to the decision a few days later [July 2] by instructing printers to start printing the questionnaire without the citizenship question. The government had told lower courts and the Supreme Court that the "absolute" deadline for starting the mammoth print job was June 30. Nevertheless, Trump falsely called the announcement "fake news" in a tweet and insisted the administration was still working on a way to include the citizenship question.
Trump then gave his tweet substance by instructing the Justice Department to come up with some way to get the question in. Justice Department lawyers had to scramble their Fourth of July plans as they went before two federal judges, tails between their legs, to explain the new instructions from their client. By close of business Friday [July 5], the government's new rationale for the citizenship question had yet to emerge, but Trump had raised the possibility of circumventing the courts with an executive order to instruct the Commerce Department to put the question in after all.
Ross's contrived explanation for the citizenship question, rejected by Roberts and the four liberal justices, rested on a letter from the Justice Department formally requesting a citizenship question supposedly to aid enforcement of the Voting Rights Act. The letter came only after Ross personally asked then-Attorney General Jeff Sessions to get a letter that he could use to justify the question — a letter that Roberts later dismissed as "pretext."
Ross was forced to contrive an explanation because there is no legally or statistically legitimate reason to include the citizenship question apart from the illegitimate political motive to discourage responses from people living in the United States who are not citizens or are uncertain of their citizenship status. The Constitution requires an "actual enumeration," not an incomplete count. Experts at the Bureau of the Census, part of the Commerce Department, countered Ross's insistence on adding the citizenship question with documented studies showing the question could result in a seven-figure undercount, primarily among Hispanics and non-citizens.
The Census Bureau answered Ross's continued pressure by showing that a citizenship question would do more than depress the response rate. It would also produce "less complete and accurate" data, they warned: some non-citizen households might lie; others might be mistaken about their status. A better option, the statistical experts advised, would be to match census responses with administrative records already maintained by the government showing citizenship status.
In a separate opinion written for the four liberals, Justice Stephen G. Breyer related all this information in concluding that Ross's decision was "arbitrary and capricious," administrative law jargon for no good. Roberts would not go that far. Instead, he stopped just short of calling Ross a liar by stating that the secretary's explanation was "incongruent with what the record reveals about the agency's priorities and decisionmaking process."
Trump further contradicted the administrative record on Friday [July 5] with a new explanation for the citizenship question. "You need it for Congress for districting,” he told reporters in an on-the-run question-and-answer session. “You need it for appropriations — where are the funds going? How many people are there?" That answer in effect validated the allegations by plaintiffs in the two cases that the citizenship question was aimed at reducing the population count in areas with substantial Hispanic communities, all for the purpose of reducing representation in Congress and cutting federal funds to some extent.
The Supreme Court's decision came in the government's appeal of a decision by U.S. District Court Judge Jesse Furman in a case initiated by immigrant rights groups and joined by New York and other states. A federal judge in Maryland, Judge George Hazel, had similarly ruled against the citizenship question. Hazel added to the government's legal problems on Friday by deciding to expand the case before him into a racial discrimination case. Furman and Hazel had both rested their rulings on administrative law grounds without finding that the administration was intentionally seeking to reduce the population count of minority groups.
In New York, Furman issued an order noting that the government had acknowledged that his injunction "remains in place" and that it had promised to notify the court before taking any steps to insert the citizenship question. With that said, Furman found no need for a status conference in the case pending further information on the proceedings before Judge Hazel. In Maryland, plaintiffs' attorneys were urging Hazel to issue an extraordinary order prohibiting the administration from saying anything to suggest that the census would include a citizenship question.
The chaotic maneuverings were aptly described by election law expert Rick Hasen as "amateur hour," but some cynical observers saw a method to the administration's madness. With enough confusion, the response rate among Hispanic communities might be depressed even without the citizenship question. And the question remained whether the administration could get the case back before the Supreme Court and persuade Roberts in the end to go along after all.
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