The Supreme Court’s 5-to-4 ruling on Department of Commerce v. New York is being characterized as nothing more serious than a temporary setback regarding President Trump’s wish to reinstate a citizenship question in the 2020 U.S. Census; the administration is expected to whip up a new rationale that the high court won’t consider “contrived” and get the question in.
Unfortunately it is far worse than that, and Chief Justice John Roberts is giving further sign that he is yet another unpleasant surprise in GOP appointments to the highest level of the Judicial Branch, following in the footsteps of David Souter (Bush 41), Anthony Kennedy and Sandra Day O’Connor (Reagan), and John Paul Stevens (Ford).
“The Court’s holding reflects an unprecedented departure from our deferential review of discretionary agency decisions,” Justice Clarence Thomas warns in his dissent, joined by Justices Gorsuch and Kavanaugh. “And, if taken seriously as a rule of decision, this holding would transform administrative law … the Court has opened a Pandora’s box,” Thomas declared.
Motivated by politics and ideology, lawyers would challenge all sorts of Executive Branch decisions “with accusations of pretext, deceit, and illicit motives” leading to “an endless morass of discovery and policy disputes,” Thomas cautions. “Now that the Court has opened up this avenue of attack, opponents of executive actions have strong incentives to craft narratives that would derail them. Moreover, even if the effort to invalidate the action is ultimately unsuccessful, the Court’s decision enables partisans to use the courts to harangue executive officers through depositions, discovery, delay, and distraction.”
The establishment media, of course, would dutifully report such endless haranguing as scandals.
“For the first time ever,” Thomas writes, “the Court invalidates an agency action solely because it questions the sincerity of the agency’s otherwise adequate rationale.”
All this because Roberts and the four liberal justices think the Commerce Department’s argument that asking about citizenship status would help enforce the Voting Rights Act “seems to have been contrived” – even though Secretary of Commerce Wilbur Ross may have “merely had additional, unstated reasons for reinstating the citizenship question,” Thomas points out. “Rather, it holds that the Secretary’s stated rationale did not factor at all into his decision.”
Census Asked About Citizenship Going Back To 1820
With the high court’s summer recess beckoning, Roberts might want to offer these remarkable fortune-telling talents of his to some seaside amusement facility. We have actually reached the point where the Supreme Court is reversing administrative decision-making explicitly allowed by Congress because a majority of the justices have divined, soothsayer-like, that a cabinet secretary or agency head was thinking the wrong thoughts.
“Unable to identify any legal problem with the Secretary’s reasoning,” as Thomas puts it, “the Court imputes one by concluding that he must not be telling the truth.”
The legality of a citizenship question is not in question. As Thomas writes, alluding to Justice Alito’s separate dissent, “the Secretary’s decision plainly falls within the scope of the Secretary’s constitutional authority, does not implicate any statutory prohibition, and is among the ‘inquiries’ and ‘content[s]’ of the census that the Secretary is expressly directed to ‘determine’ for himself.”
And for crying out loud, the citizenship question was part of the U.S. Census until Obama! As Thomas notes, “Prior census questionnaires have included questions ranging from sex, age, and race to commute, education, and radio ownership. And between 1820 and 2010, every decennial census questionnaire but one asked some segment of the population a question related to citizenship. The 2010 census was the first since 1840 that did not include any such question.”
Justice Samuel Alito in his dissent points out that even “The United Nations recommends that a census inquire about citizenship,” the UN being far from an enemy of chaotic migration across national borders.
Alito even quotes Thomas Jefferson, who in 1800 “signed a letter to Congress asking for the inclusion on the census of questions” relating to, in Jefferson’s words, “the respective numbers of native citizens, citizens of foreign birth, and of aliens … for the purpose … of more exactly distinguishing the increase of population by birth and immigration.”
What’s more, “this Court has never before encountered a direct challenge to a census question,” Alito points out. “And litigation in the lower courts about the census is sparse and generally of relatively recent vintage.”
Federal Courts Mimicking Congressional Committees
Echoing Thomas, Alito warns that the Supreme Court has now “set a dangerous precedent, both with regard to the census itself and with regard to judicial review of all other executive agency actions … If this case is taken as a model, then any one of the approximately 1,000 district court judges in this country, upon receiving information that a controversial agency decision might have been motivated by some unstated consideration, may order the questioning of Cabinet officers and other high-ranking Executive Branch officials, and the judge may then pass judgment …”
Federal courts would become extensions of aggressive inquiry of cabinet departments and agencies by the opposition party in congressional committees.
“To put the point bluntly,” Alito writes, “the Federal Judiciary has no authority to stick its nose into the question whether it is good policy to include a citizenship question on the census or whether the reasons given by Secretary Ross for that decision were his only reasons or his real reasons.” For one thing, 535 other noses are stuck into it already: “The Secretary is also accountable to Congress with respect to the administration of the census since he has that power only because Congress has found it appropriate to entrust it to him.”
In his majority ruling, Chief Justice Roberts claims that the law “calls for an explanation for agency action. What was provided here was more of a distraction.” In truth, what was provided was an explanation Roberts and the four liberals found unsavory.
We may not yet have reached the stage where Roberts is basing his vote on “the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life,” as O’Connor, Kennedy and Souter put it in their 1992 Casey jointly-written opinion upholding Roe v. Wade. But twisting logic into a pretzel he disgracefully joined with the liberals to save ObamaCare in 2012. Then yesterday he concurred with part of Justice Elena Kagan’s majority opinion to continue to allow federal agencies to interpret their own regulations.
Whether what is going on is the kind of deal-making across ideological lines that was turned into a shrewd art by the late liberal Justice William Brennan, or some sort of personal repugnance toward President Trump, what Roberts is doing with his crystal ball can’t be described accurately as judging.
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