WASHINGTON — The Trump administration is readying an effort to revive a question about citizenship on next year’s census, with influential conservatives advocating an aggressive approach to bypass lower courts and rapidly put the issue back before the Supreme Court.

An indication of the administration’s strategy could come as early as Tuesday as Justice Department lawyers are expected to make a filing in at least one of the several cases challenging the citizenship question.

The high court last week blocked the administration’s effort to add the question on citizenship to the census, saying Commerce Secretary Wilbur Ross, whose agency oversees the Census Bureau, had not provided an honest answer for why he wanted to make the move.

But the 5-4 ruling by Chief Justice John G. Roberts Jr. gave the administration a chance to start over and try to come up with a new rationale for adding the question for the first time in decades.

Many conservative legal scholars and advocates believe Roberts went too far in his decision. Some activists have gone further, harshly criticizing Roberts and accusing him of betrayal.

The aggressive strategy being pushed by some conservatives would be controversial and could spark a clash between courts and the White House, a fight that some in the Trump administration would relish.


With the deadline for starting to print millions of census forms rapidly approaching, the administration faces time pressure to come up with a passable rationale and get through inevitable court challenges.

Democrats argue that adding a question on citizenship is a partisan ploy to reduce minority participation in the census. Officials in California and other states, as well as neutral experts, have warned the question would result in an undercount of immigrants that could cost some states billions in federal funds and shift congressional districts from states with large numbers of immigrants to those with fewer.

President Donald Trump has said that he is consulting with White House lawyers about delaying the census, which would be problematic because the Constitution mandates it be conducted in 2020.

Speaking at the White House on Monday, Trump referred to the key role the census plays in determining how government resources are distributed.

“I think it’s very important to find out if somebody is a citizen as opposed to an illegal,” he said. “I think there’s a big difference, to me, between being a citizen of the United States and being an illegal.”

Because the census by law must keep responses anonymous, however, putting the citizenship question on the survey would not actually let officials know who is a legal resident and who isn’t.


The aggressive strategy being advocated by some conservatives would aim to get around the time crunch by having Trump take the matter into his own hands and issue an executive order laying out new reasons why the citizenship question needs to be added.

The White House does not seem to be headed in that direction.

A senior administration official said the White House was “weighing its legal options on the census issue.”

“The options it is weighing are within the confines of the Supreme Court decision,” the official added. “The options that we’re weighing are not ones that would be in contravention of the court.”

Trump, however, has often surprised even his senior staff by adopting proposals being pushed by influential conservative commentators.

Under the plan being advocated by conservatives, the administration would offer a rationale focused heavily on national security. The Supreme Court has generally deferred to the administration on national security matters.


The Commerce Department would then proceed with adding the question to the census forms. Legal challenges would surely follow, forcing the lower courts to consider the new rationale.

If judges reject the new reasoning and order the administration to halt adding the question, the strategy calls for the Justice Department to fast track the appeals to the Supreme Court.

Such an approach could have a side benefit — providing an opening for the Justice Department to challenge nationwide injunctions issued by district court judges. Attorney General William Barr has made limiting such rulings a top priority. He argues judges should only be permitted to block administration actions in their own districts and appellate circuits.

Defenders of nationwide injunctions say limiting them would cause chaos — with major federal programs being run under different rules in different parts of the country.

Hugh Hewitt, a conservative pundit and former Justice Department attorney, urged Trump to take a pugnacious approach in a Washington Post column on Saturday.

Barr, he said, should “prepare an executive order for the president’s signature directing the commerce secretary to add any such questions” that Trump believes are needed. “Nothing more is required.”

Hewitt quoted a conservative former appellate judge, J. Michael Luttig, now an executive vice president at Boeing Corp., who questioned the legal reasoning in Roberts’ ruling.

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