WASHINGTON – Warming up for the next round of the fight over adding a citizenship question on the 2020 census after setbacks in the courts, the Trump administration's latest effort faces numerous hurdles in court that could spill out into Congress' annual spending talks.
The administration has been coy about how it will try to relitigate the question, and Attorney General William Barr told reporters Monday the "pathway" to reinstate it may be unveiled later this week.
But any move in court could quickly put the government in a bind, Georgetown law professor and former Justice Department attorney Marty Lederman said. The government has blown past an oft-repeated June 30 deadline and must quickly come up with a new rationale after the Supreme Court called its first a "pretext."
"Now the idea that (Commerce Secretary Wilbur Ross) is going to rely on a genuine reason now that he never considered before and not the reasons that he did act before, that's surely unusual," Lederman said.
The Supreme Court decision last month rejected the administration's initial Voting Rights Act enforcement rationale as pretextual and sent it back to the agency. Lederman and others said the next step may take a few forms: an executive order adding the question directly, an order directing Ross to add it, or Ross producing a new rationale for the question on his own.
Additionally, the government repeatedly told courts that it needed a decision by June 30, or it would need additional funds, Lederman noted. "The first (hurdle) is where do they get the resources to do this and the second hurdle is coming up with a rationale that is sufficient," he said.
Forms are being printed without the citizenship question, and with the massive undertaking underway, it will be hard to turn around, according to former Census Bureau directors. The government's printing contractor RR Donnelley is responsible for producing more than 1.5 billion documents tied to the census under a $114 million contract.