By Newsweek |

Fox News Legal Analyst Skeptical that Trump Will Be Allowed to Add Citizenship Question to Census

Fox News senior judicial analyst Andrew Napolitano expressed skepticism that President Donald Trump's administration will actually be able to add a citizenship question to the 2020 Census after the effort was blocked in the Supreme Court last month.

"I don't know how they can get around it," Napolitano, who previously served as New Jersey superior court judge, said during a Tuesday segment of Fox & Friends. "I'm fascinated and anxious to see what argument they're going to come up with because you cannot create an argument as an afterthought," he explained. "You can't have a rationalization to justify government behavior after the behavior has taken place."

Napolitano also pointed out that attorneys for the Justice Department "cannot contradict what they said earlier," explaining that Trump "got them in a little bit of trouble" on that end.

"Because the president said at one of those famous driveway interviews he gave: 'We need to ask this question because of redistricting.' Woah! The lawyers told all the judges in the case this has nothing to do with redistricting."

Census citizenship

Demonstrators rally at the Supreme Court in Washington, D.C. on April 23 to protest a proposal to add a citizenship question to the 2020 Census MANDEL NGAN/AFP

The legal expert said that the fact that the Justice Department has now changed lawyers to continue the case could also be a strike against the administration. "When you change lawyers, judges are skeptical," he said. "Something's going on."

"The attorney general says he can get the president out of the weeds. I think the Supreme Court views it differently," he concluded.

At the end of the last month, the Supreme Court temporarily blocked the Trump administration from adding a controversial citizenship question to the 2020 Census. "We cannot ignore the disconnect between the decision made and the explanation given [by the Trump administration]," the majority ruling said at the time. "The explanation provided here was more of a distraction," it added, also calling it "contrived."

However, the ruling left open the possibility that the citizenship question could be added with adequate justification in the future.

As the Justice Department and the Census Bureau had long maintained a beginning of July deadline in order to begin printing census documents, government officials announced after the ruling that they would move forward without the question.

But after top administration officials confirmed this publicly, Trump posted to Twitter, saying that decision was "FAKE!" He then instructed the Justice Department to find a way to ensure the question was added to the census.

Trump and Barr

President Donald Trump and Attorney General William Barr arrive together at the East Room of the White House on May 22 in Washington, D.C. Chip Somodevilla/Getty

However, those efforts now contradict what was told to the Supreme Court previously, because the Justice Department had said the ruling was needed quickly to ensure the timely printing of the census. The printing began last week, but the Trump administration continues to fight to add the question.

Critics, and the Census Bureau itself, agree that adding the question will lead to a significant undercount of the U.S. population, as immigrant households may be fearful to fill out the document if they have non-citizen family members.

Evidence has also emerged that suggests adding the question may be part of a Republican effort to try and redistrict communities that would generally swing Democratic, hoping the citizenship question would lead to an undercount in Hispanic populations. Thomas Hofeller, a now deceased GOP gerrymandering strategist, conducted recently revealed research in 2015 that led him to conclude that adding the question would "clearly be a disadvantage to the Democrats" and "advantageous to Republicans and Non-Hispanic Whites." The Justice Department denied that this had any bearing on the decision, but Trump said precisely the opposite last Friday.

"Number one, you need it for Congress — you need it for Congress for districting," Trump told reporters.