Free Republic
Browse · Search
News/Activism
Topics · Post Article

Skip to comments.

Why John Robertsí Census Citizenship Decision Is Legally And Politically Corrupt
The Federalist ^ | 07/15/2019 | Ben Weingarten

Posted on 07/15/2019 9:31:56 AM PDT by SeekAndFind

Are we a nation of laws or a nation of men? Previously, the most radically leftist federal judges had failed this test on cases pertaining to the Trump administration. Now the highest court in the land has joined them.

The fight over whether the simple question, “Is this person a citizen of the United States?” could appear on the 2020 U.S. census already implicated major issues of public policy, including immigration, national sovereignty, and voting rights. But the Supreme Court’s recent ruling on the matter has now transcended these issues to challenge the rule of law itself, once again raising the question: Who is really “violating norms,” “undermining institutions” and creating “constitutional crises”—President Trump, or his Resisters?

The majority opinion in Department of Commerce v. New York, delivered by Chief Justice John Roberts, reads like former FBI director James Comey’s infamous statement regarding former secretary of state Hillary Clinton’s email server. It presents a methodical, compelling case that should result in a just decision, only to undo the case on the most baseless of grounds.

It’s Constitutional, But We Don’t Care

Roberts’ opinion affirms that including a question about citizenship in the decennial census is constitutional, writing that the “Enumeration Clause…permits Congress, and by extension the Secretary [of Commerce], to inquire about citizenship on the census questionnaire.” It affirms that the process by which it was to be reinstated was “reasonable, and reasonably explained,” consistent with the Administrative Procedures Act (APA). That should have been the end of it.

As Justice Clarence Thomas put it in a separate opinion: “Our only role in this case is to decide whether the Secretary complied with the law and gave a reasoned explanation for his decision. The Court correctly answers these questions in the affirmative…That ought to end our inquiry.”

But just as Special Counsel Robert Mueller’s finding of “no collusion” did not end his inquiry into obstruction, in the case of the census citizenship question, the Supreme Court soldiered on in its farcical quest. Stealing defeat from the jaws of victory for the Constitution and the country, Roberts said that in spite of the census citizenship question’s lawfulness, the Trump administration could not ask it.

You see, while including the question was lawful, and the process by which it was added defensible, the court majority argued that it thought the administration’s stated rationale for reinstating the question was disingenuous: “VRA [Voting Rights Act] enforcement rationale—the sole stated reason—seems to have been contrived,” or “pretextual” in the court’s parlance. (Link mine.)

To understand just how perverse this ruling was, let us return to Thomas’s opinion, in which he was joined by Justices Neil Gorsuch and Brett Kavanaugh, concurring in part and dissenting in part with that of the chief justice. Thomas wrote:

For the first time ever, the Court invalidates an agency [Commerce Department] action solely because it questions the sincerity of the agency’s otherwise adequate rationale…The Court’s holding reflects an unprecedented departure from our deferential review of discretionary agency decisions.

Unable to identify any legal problem with the Secretary’s reasoning, the Court imputes one by concluding that he must not be telling the truth. The Court therefore upholds the decision of the District Court—which, in turn, was transparently based on the application of an administration-specific standard.

This Court has never held an agency decision arbitrary and capricious [and therefore unlawful] on the ground that its supporting rationale was ‘pretextual.’ Nor has it previously suggested that this was even a possibility. (Emphasis mine.)

Supreme Court justices are not prone to toss around words like “unprecedented” lightly. That should tell the observer something about the handling of this case.

Unequal Treatment Before the Law

As for Thomas’s assertion that the Supreme Court’s ruling was based on an “administration-specific standard,” little could be more inconsistent with the law, which is supposed to treat people, including presidents, equally. It is breathtaking to behold the court’s extreme intrusion into the Commerce Department’s business, halting one of its plainly discretionary actions on grounds that Thomas says had never even been contemplated before, given the extreme deference with which the courts have treated our mushrooming administrative state for decades.

It bears noting that in a separate opinion, Justice Samuel Alito went so far as to say that the inclusion of the census citizenship question “may not be challenged under the APA” altogether. In other words, the majority’s view was truly extraordinary, even for some of the court’s least sympathetic judges to the administrative state. More on the deference issue momentarily.

Last but not least, since when is the Supreme Court in the business of going beyond constitutionality to mind-reading as to why bureaucrats devise policies that are constitutional? It seems the court itself engaged in projection. Was not the court’s own decision “pretextual,” seeing as it took something that was constitutional and found, in its own words, a “contrived” reason to block it? Was not the admission of constitutionality here a tell that the merits mattered not to the court?

Of course, even if the Trump administration had myriad reasons for including the question, and even if we played devil’s advocate and assumed some of the reasons were political, if the citizenship question is constitutional, again, shouldn’t that be the end of it?

The administrative state is self-evidently not independent and apolitical. One need only look at the resistance of the contemporary administrative state to its chief executive, President Trump, to see this proven in real time. But duly elected congressmen and presidents, not courts, are supposed to determine what and how policy is administered.

Undermining the Legitimacy of the Supreme Court

Further undermining the legitimacy of this ruling is the challenge in squaring the chief justice’s apparently pretextual opinion with his other rulings this term, and his overall view of his role as protecting the integrity of the Supreme Court. The Wall Street Journal editorial board highlights Justice Roberts’ apparent hypocrisy:

It’s hard to reconcile Chief Justice Roberts’ opinion on the citizenship question with his Auer decision…On one hand, he wants to defer to regulators on matters of legal interpretation that are the purview of courts, but on the other he wants to micromanage the motives of agencies when there is no cause for judicial review.

The Chief is also contradicting the message he sent in his gerrymander ruling…that judges shouldn’t get involved in political questions. He’s inviting more political lobbying of the Court and encouraging lower-court judges to intervene in partisan fights over matters of policy that the Constitution delegates to the political branches.

Should not someone as dedicated to stare decisis and the purported independence of the judiciary as Justice Roberts have practiced what he preached?

When a court rules against something clearly legal, on an invented rationale that arguably should have never even been considered, can this be perceived as anything other than a political act? Occam’s Razor suggests that the court’s attribution of bad faith to the Trump administration seems to be based above all in one core belief that can be summarized in three words: “Orange man bad.”

The sliver of a silver lining in the tortured majority opinion, if this ruling was applied broadly and taken to its logical conclusion, would be that the entire administrative state could collapse on itself since virtually every decision made by its bureaucrats could be attacked as pretextual.

A Double Standard?

While there is a larger contingent of Supreme Court justices hostile towards rule-by-agencies than ever before, it seems clear that the court’s progressives and chief justice would not let this happen. Does anyone believe a President Obama or even a President Bush would have had his administration’s actions subjected to such a standard?

President Trump is being held to a standard all his own. That means we are fast-approaching a time without standards.

The Supreme Court remanded the question to the district court from whence the case came, allowing the Trump administration the opportunity to try to rectify the “pretext” issue. President Trump and Attorney General William Barr have declared it would be practically impossible to accomplish this and fight the outstanding litigation in time to get the question incorporated into the 2020 census.

Instead, the administration’s workaround is to take executive action enabling it to collect data from a variety of federal agencies in an attempt to compile population numbers by citizenship status. That the court forced the administration into a series of unsatisfactory choices to collect this data is in and of itself terrible.

If the president cannot get a fair hearing at the most sacrosanct institution of law, then our system has no legitimacy. What the Supreme Court has said here is that we are a nation of men, not laws, and thus, that we may have no justice at all.

While according to Barr the Trump administration was loathe to consider flouting the Supreme Court on this issue, it is becoming apparent that at some point the administration is going to need to take on the rolling, true constitutional crisis created by the acts of judicial supremacy we are witnessing today. Absent such a response, the Supreme Court is likely to continue thwarting perfectly lawful administration policy, just as lower courts have done with universal injunctions. Our republican system of government may well demand it.


Ben Weingarten is a senior contributor at The Federalist and senior fellow at the London Center for Policy Research. He is the founder and CEO of ChangeUp Media, a media consulting and production company dedicated to advancing conservative principles. You can find his work at benweingarten.com, and follow him on Twitter @bhweingarten.


TOPICS: Constitution/Conservatism; Culture/Society; Front Page News; Government; Mexico; Philosophy; Politics/Elections; US: Arizona; US: California; US: Florida; US: New Mexico; US: New York; US: Texas
KEYWORDS: arizona; buildthefence; california; census; citizenship; daca; dreamact; dreamers; electoralcollege; faithlesselectors; florida; johnroberts; lawsuit; mexico; nationalpopularvote; newmexico; newyork; npv; robertscort; supremecourt; texas; trumpillegals; trumpscotus
Navigation: use the links below to view more comments.
first 1-2021-4041-57 next last

1 posted on 07/15/2019 9:31:56 AM PDT by SeekAndFind
[ Post Reply | Private Reply | View Replies]

To: SeekAndFind

John Roberts is the biggest disappointment to the Supreme Court since Earl Warren.


2 posted on 07/15/2019 9:33:51 AM PDT by ssaftler (The opinions expressed here have not been peer reviewed, fact checked or focus group tested.)
[ Post Reply | Private Reply | To 1 | View Replies]

To: SeekAndFind

I can settle the whole argument without all the legal mumbo jumbo with one question;

Why didn’t the supreme court interpret political intent when Obama removed it from the census?


3 posted on 07/15/2019 9:35:12 AM PDT by z3n
[ Post Reply | Private Reply | To 1 | View Replies]

Once we get Amy Coney Barrett on the Court, let whispers of TRUMP telling Senators to make a deal with Democrats

Help us get rid of Roberts & we will give you Merrick Garland! Once Roberts hears these rumors, he will start voting straight GOP on EVERYTHING!!!! LOL

4 posted on 07/15/2019 9:40:30 AM PDT by KavMan
[ Post Reply | Private Reply | To 3 | View Replies]

To: SeekAndFind

POTUS should ask one question for clarification. Is it constitutional or not? Yes or no?

Other than hat, he should just go ahead and reprint the forms with it in.


5 posted on 07/15/2019 9:41:25 AM PDT by Jim Robinson (Resistance to tyrants is obedience to God!)
[ Post Reply | Private Reply | To 1 | View Replies]

To: SeekAndFind

We should all clip this article and mail it to Injustice Roberts. He is making a mockery of the rule of law


6 posted on 07/15/2019 9:42:58 AM PDT by McGavin999 (injustice Roberts repeatedly making a mockery of the rule of law)
[ Post Reply | Private Reply | To 1 | View Replies]

To: SeekAndFind

I’ll take “He’s being blackmailed for $200 Alex.”


7 posted on 07/15/2019 9:44:00 AM PDT by jmaroneps37 (Conservatism is truth. Liberalism is lies.)
[ Post Reply | Private Reply | To 1 | View Replies]

To: ssaftler
#2: "John Roberts is the biggest disappointment to the Supreme Court since Earl Warren."

Absolutely. No doubt about it.

Even more horrible is that it will only get worse as Roberts "grows" into his job over the years.

Our only hope is if one of the five libs dies soon. We only have four conservatives on the Supreme Court. Dear Lord, please make that five conservatives by the end of President Trump's first term. In Jesus name!
 

8 posted on 07/15/2019 9:49:15 AM PDT by Governor Dinwiddie (In Italia i fascisti si dividono in due categorie : i fascisti e gli antifascisti. -- Ennio Flaiano)
[ Post Reply | Private Reply | To 2 | View Replies]

To: McGavin999

We should all clip this article and mail it to Injustice Roberts. He is making a mockery of the rule of law
*****************************
Making a mockery of select rules of law is HIS SPECIALTY.

PS ... It’s a tax, don’t cha know.


9 posted on 07/15/2019 9:50:40 AM PDT by House Atreides (Boycott the NFL 100% ¬ó PERMANENTLY)
[ Post Reply | Private Reply | To 6 | View Replies]

To: SeekAndFind

Whatever it is they have on Roberts, its knowable. If the black hats have it, the white hats should be able to determine what it is and either free him up from blackmail, or simply present it to him directly and force him to resign.

In any case, he needs to go. He is subject to improper influence and that means he has to go... but he will only go if he is more afraid of the white hats than he is of the black hats.


10 posted on 07/15/2019 9:53:56 AM PDT by marron
[ Post Reply | Private Reply | To 1 | View Replies]

To: SeekAndFind

Similar to the Acosta episode. He was subject to improper influence when he agreed to Epstein’s sweetheart deal. We need to know who was pressuring him... but the fact that there is something out there that makes him “pressurable” meant he had to go. What it was we maybe don’t need to know, since he is out of government. But the fact that he has some kind of baggage that compromises him means he had to go.


11 posted on 07/15/2019 9:57:27 AM PDT by marron
[ Post Reply | Private Reply | To 1 | View Replies]

To: SeekAndFind
Stealing defeat from the jaws of victory for the Constitution and the country

Roberts is 2 for 2 in this endeavor


12 posted on 07/15/2019 9:57:30 AM PDT by Buckeye McFrog (Patrick Henry would have been an anti-vaxxer.)
[ Post Reply | Private Reply | To 1 | View Replies]

To: ssaftler
John Roberts is the biggest disappointment to the Supreme Court since Earl Warren.

Well not quite yet, but I have no doubt he will get there post haste.

13 posted on 07/15/2019 9:58:33 AM PDT by itsahoot (Welcome to the New USA where Islam is a religion of peace and Christianity is a mental disorder.)
[ Post Reply | Private Reply | To 2 | View Replies]

To: z3n

RE: Why didn’t the supreme court interpret political intent when Obama removed it from the census?

Was there a lawsuit filed to prevent the removal then?


14 posted on 07/15/2019 9:58:35 AM PDT by SeekAndFind (look at Michigan, it will)
[ Post Reply | Private Reply | To 3 | View Replies]

To: SeekAndFind

How much more proof do you need that this country is ruled by a hidden elite exercising control from the sidelines.


15 posted on 07/15/2019 9:58:47 AM PDT by soupbone1
[ Post Reply | Private Reply | To 1 | View Replies]

To: SeekAndFind

RE: Why didn’t the supreme court interpret political intent when Obama removed it from the census?
~~~
Was there a lawsuit filed to prevent the removal then?
~~~

Well... it’s definitely late in the game, but is it too late to start one? It’s not going to save the 2020 census, but something needs to be done about a duplicitous rejection by the SC. They can’t question Trumps intent without applying the same question to Obama’s


16 posted on 07/15/2019 10:02:59 AM PDT by z3n
[ Post Reply | Private Reply | To 14 | View Replies]

To: SeekAndFind

John Roberts is keenly interested in protecting the SCOTUS as an institution, and somehow has come to the misguided conclusion that he can split hairs in such a way as to shield it from criticism. This is not the first time he has done this.

In this instance, I think he counted on PDJT staying resolute, reconstructing his plan to add the citizenship question, and then moving forward to have that on the census. Roberts could then step back and say, “Hey, no harm, no foul. All’s well that ends well; thanks to the SCOTUS.”

But PDJT is a crafty fellow. He gets to have his cake and eat it too. He finds another means to construct the same data. He disarms the Dems. He wins in the court of public opinion. He makes John Roberts in particular look like a fool. And he reinforces in the minds of his base (and increasingly of independents) that the judiciary is a big part of this country’s problems.

PDJT is described by liberals everywhere and always as impetuous, as if he opens his mouth and stuff comes out. My sense is the opposite. He plays with gut instincts but is premeditated and calculating. He stays relentlessly on message and methodically on plan. Because Dems fail to understand him, they react reflexively, flailing about, and always jumping the shark. This in turn gives him greater license to tweet incendiary things, since he knows that Dems will come back orders of magnitude more incendiary and largely incoherent.

I am neither fan nor foe of this president, but his reliable winning streak is impressive and likely to continue. I just hope that he does not become complacent or filled with hubris.


17 posted on 07/15/2019 10:06:07 AM PDT by drellberg
[ Post Reply | Private Reply | To 1 | View Replies]

To: z3n

Nobody sued to stop the Kenyan from Indonesia from removing it.

Just as nobody sued to stop DACA.

Just as nobody stopped him from usurping the Presidency in violation of the Constitution.


18 posted on 07/15/2019 10:06:12 AM PDT by Lurkinanloomin (Natural Born Citizen Means Born Here Of Citizen Parents_Know Islam, No Peace-No Islam, Know Peace)
[ Post Reply | Private Reply | To 3 | View Replies]

To: McGavin999

He made a mockery of the Constitution on Usurpation Day, January 20, 2009

He was far from alone.


19 posted on 07/15/2019 10:07:29 AM PDT by Lurkinanloomin (Natural Born Citizen Means Born Here Of Citizen Parents_Know Islam, No Peace-No Islam, Know Peace)
[ Post Reply | Private Reply | To 6 | View Replies]

To: House Atreides

Yeah it’s a tax, and for some reason Americans don’t need to know how many of the people who partake of our great country are citizens.


20 posted on 07/15/2019 10:08:30 AM PDT by McGavin999 (injustice Roberts repeatedly making a mockery of the rule of law)
[ Post Reply | Private Reply | To 9 | View Replies]


Navigation: use the links below to view more comments.
first 1-2021-4041-57 next last

Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.

Free Republic
Browse · Search
News/Activism
Topics · Post Article

FreeRepublic, LLC, PO BOX 9771, FRESNO, CA 93794
FreeRepublic.com is powered by software copyright 2000-2008 John Robinson