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Demonstrators protest the citizenship question at the Supreme Court in April. Photo: Mandel Ngan/AFP/Getty Images

President Trump is considering an executive order to try to move forward with a citizenship question on the 2020 census, top sources tell Jonathan Swan and me.

  • "We didn’t come this far just to throw in the towel," said a senior administration official with direct knowledge of the conversations.

Administration lawyers are exploring various legal options.

  • A senior legal source said: "The administration is considering the appropriateness of an executive order that would address the constitutional need for the citizenship question to be included in the 2020 census."
  • But there is considerable skepticism within the administration that an executive order would succeed.

Why it matters: Trump's insistence on pushing ahead with the question, potentially without doing the legwork the Supreme Court called for, reflects his expansive view of executive power.

  • A source familiar with some of the administration's internal deliberations said: "I think that there’s a good argument to be made that even though the president may lose in litigation at the end of the day, going through that process ultimately makes it clear that it’s the chief justice, and not the Executive Branch, that bears responsibility for that unfortunate outcome."

Former federal judge J. Michael Luttig, who has longtime ties to officials in the administration, told Axios:

  • "If the president of the United States were to issue an executive order, supported by his full Article II powers, directing that the citizenship question be included in the 2020 census, I believe the Supreme Court would affirm the constitutional power of the president to include the citizenship question in the census.”

How we got here: The Supreme Court voted last week to block a census question that asks: "Is this person a citizen of the United States?"

  • But it gave the administration an opening to try again, if it could come up with a more persuasive argument about why it was adding the question.
  • Trump administration officials, including Commerce Secretary Wilbur Ross, said Tuesday they would go ahead with the 2020 census without including the citizenship question.
  • But Trump threw some of his own senior administration officials into confusion on Wednesday morning by tweeting that it was “fake” news that the Commerce Department was dropping its quest to include the citizenship question.
  • In the hours following the president’s tweet, administration lawyers scrambled to figure out alternatives.
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Go deeper

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U.S. tops 88,000 COVID-19 cases, setting new single-day record

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Data: COVID Tracking Project; Chart: Axios Visuals

The United States reported 88,452 new coronavirus cases on Thursday, setting a single-day record, according to data from the COVID Tracking Project.

The big picture: The country confirmed 1,049 additional deaths due to the virus, and there are over 46,000 people currently being hospitalized, suggesting the U.S. is experiencing a third wave heading into the winter months.

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State of play: But concern has spiked among health experts and physicians over what they see as an assault on key science protections, particularly during a raging pandemic. And a move last week by President Trump, via an executive order, is triggering even more worries.

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