From the hearing before Judge Hazel today (via Tierney Sneed):
MR. HUNT: We at the Department of Justice have been instructed to examine whether there is a path forward, consistent with the Supreme Court’s decision, that would allow us to include the citizenship question on the census. We think there may be a legally available path under the Supreme Court’s decision. We’re examining that, looking at near-ter options to see whether that’s viable and possible.
And so to the extent we can identify an option for that to work, if we continue to examine the decision and believe that we have a viable path forward to that work, our current plan would be to file a motion in the Supreme Court to request instructions on remand to govern further proceedings in order to simplify and expedite the remaining litigation and provide clarity to the process going forward.
So as Mr. Gardner said, it’s very fluid at present because we are still examining the Supreme Court’s decision t see if that option is still available to us.
As noted earlier, the judge has given the parties until 2 pm Friday to clarify.
When the census decision came out, I said at Slate that Chief Justice John Roberts left an opening to create a new rationale for including the citizenship question and to move forward. It would have been tough. The actions of the last few days, and the shifting position of the administration, makes it tougher. The courts are going to be incredibly skeptical. Still, given this President and his tweet earlier today, they may still try, and the issue could still be back up at SCOTUS this summer as I had earlier predicted.
I feel badly for the other DOJ lawyer who remarked at the hearing:
MR. GARDNER: Your Honor, this is Mr. Gardner. I want to back up just a step and say that I’ve been with the United States Department of Justice for 16 years, through multiple Administrations, and I’ve always endeavored t be as candid as possible with the Court. What I told the Court yesterday was absolutely my best understanding of the state of affairs and, apparently, also the Commerce Department’s state of affairs, because you probably saw Secretary Ross issued a statement very similar to what I told the Court. The tweet this morning was the first I had heard of the President’s position on this issue, just like the plaintiffs and Your Honor. I do not have a deeper understanding of what that means at this juncture other than what the President had tweeted. But, obviously, as you can imagine, I am doing my absolute best to figure out what’s going on.
This is a shitshow caused by DOJ’s client, and nothing else.
UPDATE. From a DOJ filing in the district court in the NY case which SCOTUS recently decided: