WASHINGTON — President Trump is planning to take another step in his ongoing battle to place a question about citizenship on the 2020 census by announcing an executive action in the Rose Garden on Thursday, according to a senior administration official familiar with the decision.
Mr. Trump said on Twitter that he would hold an afternoon news conference on the issues of “census and citizenship” days after his attorney general, William P. Barr, suggested he thought there could be a legal path to placing the citizenship question on the census after the Supreme Court blocked its inclusion last month.
Mr. Trump may not issue an executive order on the citizenship question, according to aides briefed on the plan. Executive orders attempt to impose a sweeping unilateral change, as the president has done over 100 times during his presidency, setting up various legal entanglements.
[Barr says legal path to census citizenship question exists, but he gives no details.]
One option, aides said, is a presidential memorandum that is essentially meant to put his administration’s view on the issue into writing. Mr. Trump has written over 40 memorandums since the beginning of his presidency to pursue policy changes on issues ranging from rural broadband internet access to the service of transgender people in the military.
The Trump administration has argued that including the question on census forms is an important part of its efforts to protect the voting rights of the nation’s minority residents, but the Supreme Court rejected that justification as a contrived pretext.
Government experts have predicted that asking the question would cause many immigrants to refuse to participate in the census, leading to an undercount of about 6.5 million people. That could reduce Democratic representation when congressional districts are allocated in 2021 and affect how hundreds of billions of dollars in federal spending are distributed.
Whatever action Mr. Trump takes will be subject to review in the courts. Last week, Justice Department lawyers acknowledged that the administration remained subject to injunctions barring the addition of the citizenship question.
The administration will presumably have to file motions to lift those injunctions based on Mr. Trump’s action.
The new action will, in any event, almost certainly also give rise to direct legal challenges, and courts may be wary of accepting a new rationale for adding the question when the Supreme Court has already rejected the previous justification as contrived.
There is little doubt, in any event, that the case will again reach the Supreme Court. That case, against the backdrop of a chaotic litigation strategy and shifting legal arguments, will again test the limits of the court’s deference to executive power.
[What you need to know about the citizenship question and the census.]
In some cases, presidential memoranda also have encountered immediate legal challenges. Mr. Trump’s presidential memorandum released in August 2017 required all transgender service members to be discharged the following year. That policy encountered a series of legal challenges until January 2019, when the Supreme Court reversed an Obama-era decision that transgender people could serve.
And in 2012, the Deferred Action for Childhood Arrivals policy, or DACA, which sought to create protections for immigrants brought to the United States as children, was announced by President Barack Obama through a presidential memo. The future of that program remains in a legal quagmire.