The difficulties President Trump faces in carrying out his agenda are massive and were underscored again by the last case decided this term by the United States Supreme Court. That case, Department of Commerce v. New York, presented a challenge to the Trump Administration’s plan to add a question about citizenship status to the 2020 census form.
The U.S. Constitution requires an “Enumeration” of the population every 10 years, to be made “in such Manner” as Congress “shall by Law direct.” These days, the census has at least two important effects. One is that the enumeration of persons residing in the United States determines the apportionment of representatives in the House, and the other is that it determines, to a great extent, the amount of federal funds that will be expended in each state.
The census, then, is a means of allocating political power and federal government resources. If there is an undercount, a state may end up losing power and wealth. Fearing that asking about citizenship status will result in an undercount of people living here illegally, Democrats challenged the right of the government to secure that information as part of the census. It is no secret that undocumented foreign nationals tend to cluster in urban areas, most often under Democratic Party control. So blue states feared the results of returning the citizenship question to the census.
As they have done with many policies of this administration, a coalition of progressives formed and brought actions challenging the citizenship question, alleging, among other things that it was an attempt at unlawful discrimination on the part of Commerce Secretary Wilbur Ross. Finding a judge sympathetic to their views, as they are too frequently able, they were successful in a federal trial court in one of the bluest of the states, New York. Similar actions are underway in other federal courts, but it was hoped that the Supreme Court would resolve the issue one way or the other before the printing of the 2020 census forms, which could take place later this year.
It was not to be. In an opinion of Byzantine complexity by Chief Justice John Roberts, the court acknowledged there was actually no legal impediment to asking the citizenship question in the census questionnaire. But because the Administrative Procedure Act enabled judicial review of the decisions of the secretary of commerce, and because the court suspected Ross had not been candid with regard to his motives for seeking the citizenship question, “meaningful judicial review” could not be had. Therefore, wrote Roberts, it was necessary to forbid the addition of a citizenship question to the census until further examination of the secretary’s motives could be accomplished in the lower courts.
Ross, whose department was charged with conducting the census, maintained that the citizenship question was added at the request of the Department of Justice, so that that that department might better enforce the Voting Rights Act (VRA)—the notion being, apparently, that if the census revealed many citizens were not exercising their right to vote, this might be corrected by appropriate action.
This, according to the Supreme Court (and the lower court) was a “pretext” (a nice way of saying “a lie”), since Ross had declared soon after assuming his office that he would add that question to the census, presumably because he believed it would aid in determining the actual scope of the nation’s problem of illegal immigration.
The “pretextual” nature of Ross’s motives, for the Supreme Court majority, precluded effective judicial review. That this result was outrageous was brilliantly communicated in a dissenting opinion by Justice Clarence Thomas, further solidifying his reputation as the greatest defender of the Constitution and the rule of law currently sitting on the court. The key provisions of Thomas’s opinion are worth quoting in full:
For the first time ever, the Court invalidates an agency action solely because it questions the sincerity of the agency’s otherwise adequate rationale. Echoing the din of suspicion and distrust that seems to typify modern discourse, the Court declares the Secretary’s memorandum “pretextual” because, “viewing the evidence as a whole,” his explanation that including a citizenship question on the census would help enforce the Voting Rights Act (VRA) “seems to have been contrived.” . . . The Court does not hold that the Secretary merely had additional, unstated reasons for reinstating the citizenship question. Rather, it holds that the Secretary’s stated rationale did not factor at all into his decision.
The Court’s holding reflects an unprecedented departure from our deferential review of discretionary agency decisions. And, if taken seriously as a rule of decision, this holding would transform administrative law. It is not difficult for political opponents of executive actions to generate controversy with accusations of pretext, deceit, and illicit motives. Significant policy decisions are regularly criticized as products of partisan influence, interest-group pressure, corruption, and animus. Crediting these accusations on evidence as thin as the evidence here could lead judicial review of administrative proceedings to devolve into an endless morass of discovery and policy disputes not contemplated by the Administrative Procedure Act (APA).
Elaborating, Thomas observed that Roberts’s majority opinion, joined by the Supreme Court’s four liberals, “engages in an unauthorized inquiry into evidence not properly before us to reach an unsupported conclusion. Moreover, each step of the inquiry offends the presumption of regularity we owe the Executive.”
There is a chance this case will return eventually to the Supreme Court, and the citizenship question will be added to the census, but it may not happen in time for the next count. What Thomas reminds us, however, is that somehow John Roberts has been persuaded to join progressives and the enemies of this administration in erecting hurdles no other president has had to surmount.
Just as the Russia hoax involved an unprecedented attempt by the Obama Administration to employ our intelligence services wrongly to conduct political surveillance and seek to undermine candidate and later President Trump, so the Roberts Court has now made the president’s task of implementing policy more precarious in an unprecedented manner.
No wonder, then, that following this decision President Trump tweeted “Seems totally ridiculous that our government, and indeed Country, cannot ask a basic question of Citizenship in a very expensive, detailed and important Census, in this case for 2020.” He’s right, of course.
John Roberts, who, in his confirmation hearings, boldly claimed that justices were apolitical “umpires,” belied this notion in his majority opinion, just as he did in upholding Obamacare in 2012, with an equally contrived opinion declaring that law—which clearly violated Congress’s commerce clause powers (as Roberts himself admitted)—could be sustained as a constitutional exercise of Congress’s taxing power. In the Obamacare case, Roberts seriously undermined the 10th Amendment, which was thought to guarantee that the federal government remain one of limited and enumerated powers. Thomas’s dissent in the census case, just as he had in the Obamacare case, makes clear that Roberts engaged in judicial legislation, and, in effect, put the federal courts in a position to frustrate countless policies of the executive.
I have written at length elsewhere about how our law schools for two generations have encouraged the development of courts that make it up as they go along, and how that behavior has endangered the sovereignty of the American people themselves. We now have one more jarring example of this behavior that is so detrimental to the rule of law. Only if President Trump succeeds in putting more true conservatives like Thomas on the court is there any hope of returning us to self-rule and the framers’ conception of the judicial role.
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