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.
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.