The decision in the census case suggests President Trump can no longer take the court for granted.
A cynic might say that with his two major decisions on the last day of the Supreme Court term a week ago, Chief Justice John Roberts saved both the Republican Party and the court — first by shutting the federal courts’ door to claims of partisan gerrymandering, a practice in which both political parties indulge but that Republicans have perfected to a high art, and then by refusing to swallow the Trump administration’s dishonest rationale for adding a citizenship question to the 2020 census.
President Trump, having placed two justices on the Supreme Court, had taken to treating the court as a wholly owned subsidiary, and not without some justification. It was the court, after all, in an opinion by Chief Justice Roberts, joined by the other four Republican-appointed justices, that saved the president’s Muslim travel ban a year ago. But the chief justice’s opinion in the census case last week blew a hole in what appeared to be a protective firewall that the president can no longer take for granted.
I’m not joining the cynics, especially now that the citizenship question is dead — or so it seemed on Tuesday, based on the Justice Department’s assertion to the federal district judge handling a companion case in Maryland that the census forms were being printed without the citizenship question. On Wednesday, a furious President Trump ordered the Justice Department to reverse course; what followed was a telephone colloquy between that federal judge, George Hazel, and the lawyers for which the word bizarre is a breathtaking understatement. “I can’t possibly predict at this juncture what exactly is going to happen,” Joshua Gardner, a Justice Department lawyer, told the judge, who gave the administration until Friday afternoon to get its story straight.
It would take a heart of stone not to feel sorry for the administration’s lawyers, faced with defending the indefensible. As they recognized 24 hours earlier, the chief justice’s opinion in fact left no wiggle room. Once the behavior of Wilbur Ross, the secretary of commerce, was called out by the Supreme Court of the United States, the president was trapped — and now his lawyers are caught in his net. Maybe they can find a way around the chief justice’s decision, but I don’t think so.
Here’s why: Once the court rejected the administration’s stated rationale as phony — or “contrived,” as Chief Justice Roberts put it more politely in agreeing with Federal District Judge Jesse Furman that improved enforcement of the Voting Rights Act was not Secretary Ross’s real motive — the administration might have tried to come up with some other politically palatable explanation. That would almost certainly have failed, because courts generally will not accept what they call “post hoc rationalizations,” explanations cooked up under pressure and after the fact. But even if such a ploy had succeeded, its very success would have proved Secretary Ross to have been a liar all along.
The citizenship question is now history, fortunately, but this whole episode is too fascinating, too important for the country and the court, to put behind us just yet. So in this column, I want to probe the census decision itself, both for what it tells us about the court and for what it might suggest about the next test of the relationship between the president and the court that he has so recently regarded as his very own. That is the question of the validity of the president’s rescission of the program known as Deferred Action for Childhood Arrivals, or DACA, the Obama-era policy that now protects the “dreamers,” some 700,000 young undocumented people brought to this country as children, from being thrown out of the only country they have ever known. The court will hear that case in its next term, and there are some striking parallels with the census case that just might leave the Trump administration empty-handed again.
But first, the census case. I’ve been obsessed with imagining whatever dark night of the soul preceded the chief justice’s last-minute decision to shift course and reject the administration’s position.
I readily admit that I have no sources for the claim I just made. I have no proof that Chief Justice Roberts initially voted with the administration and talked himself out of that position sometime during the two months that elapsed between the April argument and the June decision. But I’ve been reading Supreme Court decisions for a very long time, and the opinions that provide the holding — the chief justice’s plus the partially concurring opinion of Justice Stephen Breyer for the court’s four liberals — have all the hallmarks of judicial tectonic plates that shifted late in the day to produce an outcome that none of the players anticipated at the start.
To begin with the chief justice’s opinion: The first 22 of its 28 pages are an argument for why the decision by Secretary Ross to add the citizenship question to the census was a reasonable one that fell squarely within his authority. Noting that Mr. Ross rejected the advice of Census Bureau experts and decided to proceed despite the risk of depressing the response rate, Chief Justice Roberts writes, “That decision was reasonable and reasonably explained, particularly in light of the long history of the citizenship question on the census.”
Then suddenly, on page 23, the opinion’s tone changes as the chief justice reviews the finding by Federal District Judge Furman that Secretary Ross’s explanation for why he wanted the citizenship question in the first place was a pretext. The official story was that it would help the Department of Justice — which was said to have requested the addition of the question — to better enforce the Voting Rights Act on behalf of members of minority groups. In fact, as Judge Furman determined from the evidence, it was Secretary Ross who solicited the Justice Department’s request, and whatever the secretary’s motivation, the reason he gave wasn’t the real one.
“We are presented,” Chief Justice Roberts observes dryly, “with an explanation for agency action that is incongruent with what the record reveals about the agency’s priorities and decision making process.” He continues:
“The reasoned explanation requirement of administrative law, after all, is meant to ensure that agencies offer genuine justifications for important decisions, reasons that can be scrutinized by courts and the interested public. Accepting contrived reasons would defeat the purpose of the enterprise. If judicial review is to be more than an empty ritual, it must demand something better than the explanation offered for the action taken in this case.”
Justice Breyer’s opinion, joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan, is almost as long as the chief justice’s. Nearly all of it reads like a dissent, arguing that Secretary Ross’s rejection of his own experts’ advice made the addition of the citizenship question unreasonable as a matter of law, “arbitrary and capricious” in the language of the Administrative Procedure Act. Only in Justice Breyer’s concluding paragraphs is there anything that reads like a concurrence: “I agree that the pretextual nature of the secretary’s decision provides a sufficient basis to affirm the District Court’s decision to send the matter back to the agency.” It’s hard to read these few paragraphs as anything other than a last-minute addition to a carefully crafted dissenting opinion, one that had rather suddenly become superfluous.
There were two other opinions filed in the case, one by Justice Clarence Thomas that was joined by Justices Neil Gorsuch and Brett Kavanaugh, and another by Justice Samuel Alito. Both disagreed vigorously with the chief justice’s bottom line. All four opinions scrupulously avoided any mention of what everybody knew: that documents brought to light in the weeks following the April 23 argument showed that the citizenship question was part of a plan not to help minority groups vote, but the opposite. The plan was to create and entrench Republican majorities in state legislatures by providing data for use if the Supreme Court gives the green light to counting only eligible voters in legislative redistricting. Conservative groups are poised to send such a case to the Supreme Court in the near future, part of a strategy to keep rapidly diversifying red states like Texas from turning blue.
There is no doubt that the justices were aware of this late-breaking development; during the days leading up to the decision, one of the plaintiff groups challenging the citizenship question had filed a brief with the court detailing the findings from the computer files of a recently deceased Republican redistricting specialist. If I’m right about the chief justice’s late-in-the-day change of heart, did these revelations play a part, even a subconscious one? That’s more speculation than even I am willing to engage in. Suffice it to say that it’s hard to imagine the administration’s litigating position undermined in a more devastating fashion.
It’s that observation that brings me to the DACA case. The court will actually hear three DACA cases, consolidated for a single argument and decision. All three are appeals by the administration of rulings that have barred it from carrying out its decision, announced in September 2017, to “unwind” the program. At issue are two Federal District Court opinions and a decision by the United States Court of Appeals for the Ninth Circuit that upheld a ruling by a federal district judge in San Francisco, William Alsup. The opinions differ slightly, but all found that the administration’s termination of DACA for the reason the administration has provided would violate the Administrative Procedure Act.
Here’s where the administration is caught. Its stated reason, as expressed by the acting secretary of homeland security on orders from the attorney general at the time, Jeff Sessions, was that DACA lacked statutory authority and was unconstitutional. At the heart of the administration’s appeal is the assertion that the federal courts lack jurisdiction to interfere with the “Executive Branch’s authority to revoke a discretionary policy of nonenforcement that is sanctioning an ongoing violation of federal immigration law by nearly 700,000 aliens.”
That is a very difficult position for the administration to maintain because it presents to the courts a question not of policy but of law. The administration would have a strong case for judicial deference if it described its rejection of DACA as a matter of enforcement priorities that differ from those of the previous administration. But by claiming that “the law is making us do it,” the administration is serving up the federal judges a question at the heart of their jurisdiction: What does the law require?
As Judge John D. Bates of the Federal District Court in Washington observed in his opinion, the administration provided only a few sentences of legal analysis to back up its claim. “This scant legal reasoning was insufficient to satisfy the department’s obligation to explain its departure from its prior stated view that DACA was lawful,” Judge Bates explained.
So the question is why the administration failed to offer a policy-based explanation, one that might well have persuaded the lower courts and eased its path to the Supreme Court. One reason might have been to protect the president, who declared shortly after his inauguration that “we are not after the dreamers, we are after the criminals” and that “the dreamers should rest easy.” The reason for going after the dreamers had therefore to be based on a claim of pure law, not a change of heart.
A more cynical explanation — and here I’ll indulge in the cynicism from which I refrained at the beginning of this column — is that in claiming that revoking the policy is required by law and not preference, the administration seeks to avoid accountability for a position that, if it were to prevail, would predictably cause economic disruption and public dismay.
Many policy positions predictably affect hundreds of thousands or millions of people; had Republicans succeeded in gutting the Affordable Care Act, for example, millions of people would have been thrown back into the health care jungle. But we don’t know their names. The DACA recipients, by contrast, have names that are known, not only to the Department of Homeland Security but to their schools, their employers, their communities. One dreamer recently received a Rhodes Scholarship and will not be able to return to the United States from Oxford if the administration wins its case. Others with less exalted achievements are simply getting their degrees, holding down jobs, paying their taxes, raising some 200,000 American-born children and going about their lives in the country they regard as their own.
The dreamers will still be here next April, when the census takers come around; the Supreme Court decision will almost certainly not be issued by then. They will be counted along with the rest of us in the grand decennial enumeration that the Constitution’s framers decreed. And a year from now, we’ll know whether the court that could see through one Trump administration strategy is willing and able to do it a second time.
Over the past several days Apple, Facebook, YouTube and Spotify have removed most of Mr. Jones’s programming from their services in a sweeping effort to rein in those who traffic in online misinformation that draws hundreds of thousands of followers and results in harassment and threats to their targets. Stitcher, LinkedIn and Pinterest have also removed Infowars content.
.. YouTube’s termination of Mr. Jones’s channel cost him access to his 2.4 million subscribers and resulted in the removal of all his past videos. Those videos had amassed billions of views, in part because YouTube continued to recommend them to users who had shown interest in conservative topics.
.. Mr. Jones has been trying to compensate by promoting his website and mobile app. On Tuesday, after news of Mr. Jones’s bans spread, Infowars was Apple’s fourth most popular news app, outranking those from every mainstream news media organization. Before the ban, it ranked 33rd on average since July 12.
.. He suggested that it was his support for President Trump, not his spreading of falsehoods, that led to him being “de-platformed.”
“This is a war on free speech,” Mr. Jones said. “This is what the corporate media is doing in America because it’s afraid of new independent media and asking questions.”.. Facebook removed Mr. Jones’s pages for violating its policies by “glorifying violence” and “using dehumanizing language to describe people who are transgender, Muslims and immigrants.” YouTube terminated Mr. Jones’s channel for repeatedly violating its policies, including its prohibition on hate speech. Spotify cited its own prohibition on hate speech as the reason for removing a podcast by Mr. Jones... Indeed, Infowars’ own website says in its terms of service that the company “may review and delete any content you post on the website or elsewhere utilizing our services or system if we determine, in our sole discretion, that the content violates the rights of others, is not appropriate for the website, or otherwise violates this agreement.”.. While private companies can choose what to take down from their sites, the fact that social media platforms like Facebook have become indispensable platforms for the speech of billions means that they should resist calls to censor offensive speech.. The recent decision by Facebook and YouTube to take down Alex Jones’s content may have provided a quick solution to a challenging situation, but encouraging these companies to silence individuals in this way will backfire.”.. Mr. Jones was defiant on his program Monday, saying past efforts to screen offensive broadcasts have “only made us stronger.”
.. “But it has not allowed us to reach a lot of new people,” he continued. “That’s why you have to understand now that Infowars is the most censored program in the world — because we know the truth.”
.. Over two decades, Mr. Jones has built a profitable business selling diet supplements, survivalist gear, and air and water filtration equipment as he spread bizarre theories, including that the terrorist attacks on Sept. 11, 2001, were an inside job, that the 2012 mass shooting at Sandy Hook Elementary School in Newtown, Conn., was a government-backed hoax, and that various government-orchestrated plots are responsible for poisoning Americans’ water, air and food. Mr. Jones promotes himself and Infowars as near-solitary truth tellers in a news landscape dominated by left-leaning “corporatist” media — even though the popular Drudge Report website broadcast his show on Monday.
.. Now, what he calls his “de-platforming” has only increased his sense of grievance, and that of his followers — even as it shrinks his reach before the November midterm elections.
.. “I knew what the enemy was doing — I knew their battle plan, I made the conscious decision to draw their fire,” he said on his show Monday. “When you see the Alamo assaulted and myself probably destroyed, I’ve been telling you this for years,” he said, adding: “Remember Infowars. Remember free speech.”
.. So far, Mr. Trump, who praised Mr. Jones during an appearance on his radio show during the presidential campaign, has remained silent as Mr. Jones issues appeals to Trump supporters.
.. On Tuesday, Donald Trump Jr. posted on Twitter that Mr. Murphy was “A Democrat Senator openly admitting that Big Tech’s censorship campaign is really about purging all conservative media. How long before Big Tech and their Democrat friends move to censor and purge Breitbart News, Daily Caller and other conservatives voices from their platforms?”
The removal of his content comes as Mr. Jones faces multiple defamation lawsuits for claims he spread on Infowars, including by the families of nine Sandy Hook victims, who are pursuing three separate lawsuits against him.
.. encourage his followers to migrate to his Infowars website, where he has posted the content removed by other platforms. He is also asking followers to donate to him — and buy his merchandise.
.. “Don’t forget the financial support; that is the strongest thing you can do to make sure that we continue on and are strong in the fight,” he said. Referring listeners to his online store, he said, “Go there today and send them a strong message that you stand for the First Amendment, you stand for us and get air filtration, water filtration, optics, preparedness gear, high quality storable foods, supplements that are so good for you and your family.
“Feed your gladiator,” he urged.
Trump’s defenders will be trying to portray Trump’s pressuring Comey to drop the Flynn investigation as an isolated incident, a president who simply didn’t know any better going a bit too far trying to get a friend off the hook.
.. The president asked Comey, then the F.B.I. director, to pledge his loyalty and to shut down one part of the investigation. When the director didn’t comply, he was fired.
And the intelligence committee hearing on all of this proceeded like it was just another partisan fight about tax cuts. The word “surreal” comes to mind.
.. the specific takeaway is actually something we already knew: Comey said: “I take the president, at his word, that I was fired because of the Russia investigation. Something about the way I was conducting it, the president felt created pressure on him that he wanted to relieve.” Comey was clear Trump didn’t ask him to stop the Russia investigation. But the president wanted to change the course of what the F.B.I. was doing. In this context, whatever his rationale, and whether or not he broke the law, is that acceptable conduct for an American president?
.. including a cryptic reference by Trump to the “the McCabe thing,” suggesting that our president might have his cross hairs on the acting FBI director.
.. The statement by Trump’s lawyer that the president feels “completely and totally vindicated” by Comey’s testimony was particularly bizarre given that Trump and the White House had both flatly denied the president ever made such a request. True, Comey’s testimony confirms that as of March 30, the F.B.I. wasn’t investigating Trump himself, but that’s hardly proof of innocence. After all, as Comey points out, that could change.
.. David French describes Comey’s account of the exchange in which Trump asked him for loyalty and concludes:
“There’s no serious argument that this is appropriate behavior from an American president. Imagine for a moment testimony that President Barack Obama or a hypothetical President Hillary Clinton had a similar conversation with an F.B.I. director. The entire conservative-media world would erupt in outrage, and rightly so. The F.B.I. director is a law-enforcement officer, loyal to the Constitution, not the president’s consigliere.”
.. The Department of Justice has long taken the position that criminal charges can’t be brought against a sitting president because that would “undermine the capacity of the executive branch to perform its constitutionally assigned functions”
.. Attorney General Jeff Sessions couldn’t bring charges even if he wanted to, which he doesn’t.
.. an aggressive accusation that the Trump administration “defamed” him and the agency to justify his firing. “Those were lies, plain and simple,”
.. Comey wants to be providing the facts, and his gut reaction — “disturbing” — while leaving the legal conclusions to the senators questioning him, and to Bob Mueller
.. Rich Lowry’s argument in Politico that Comey’s willingness to talk about ongoing investigations helps explain why Trump thought he could ask Comey to publicly say that the president himself wasn’t under investigation.
.. there something to the underlying idea, that Comey himself scrambled the rules for what should and shouldn’t be public, in the context of a highly politicized F.B.I. investigation?
.. how telling is it that the former director of the F.B.I. testified that he felt he needed to document every encounter with Trump because, given “the nature of the person,” he felt Trump might lie? He actually used the “L” word!
.. Trump is right about the “cloud” hanging over him. Comey set a bad precedent last summer and I hope the F.B.I. ditches it.
.. Senator Marco Rubio’s line of questioning, is that the defense of Trump is taking form
.. One Comey subtheme is Sessions’s failure to protect the F.B.I’s independence from the White House.
.. it sounds like Sessions is more mixed up in the Russia investigation than we know.
.. And if it turns out the campaign assisted Russia in any way, that’s a political crime that would make the Watergate break-in look benign.
.. He didn’t order Comey to shut down the whole Russia investigation, he merely asked Comey to shut down the inquiry into Flynn
.. I’ll stipulate that much of Comey’s conduct strikes me as bizarre: The vicarious leaking of his memo probably tops that list, and his reason for not alerting Sessions of Trump’s misconduct, at a time when Sessions was still overseeing the Russia investigation, is pretty thin.
.. I’m still getting my mind around Comey’s statement that he asked a friend (Dan Richman, a Columbia University law professor has confirmed he was that person) to leak Comey’s memo about Trump to the press in order to trigger the appointment of a special counsel. Wow! Trump doesn’t play chess, but that’s what Comey was doing. It also suggests that he didn’t think the Justice Department should handle the investigation through normal channels.