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.
From trade deals to gun control and immigration to military deployments, the president has a consistent pattern: Talk a big game, then back down.
President Trump’s May 8 announcement that he was withdrawing from the Iran nuclear deal should not have come as a surprise. He’d spent years railing against the plan—“the worst deal ever,” he dubbed it—and had promised to rip it up. And yet up to the moment when the president made the final call, there was still some suspense about what he would say.
President Trump’s declaration of a national emergency to build a wall on the U.S. southern border comes after two years of political neglect of his signature campaign promise, lost amid competing priorities and divisions within his administration, according to current and former White House officials, lawmakers and congressional staffers.
Mr. Trump on Friday said the move would allow him to supplement the $1.38 billion allotted for border barriers in the spending package approved by Congress—far short of the $5.7 billion Mr. Trump wanted. “We’re talking about an invasion of our country,” Mr. Trump said speaking from the Rose Garden in urgent terms familiar during his campaign.Yet in the two years since Mr. Trump took office, there had been no single official appointed within his administration to champion the wall. A revolving cast handled negotiations with Congress over paying for it. And the picture of what, exactly, the wall should be kept shifting. In late 2017, Mr. Trump talked privately to his staff about limiting the length of new wall construction because such natural barriers as a “valley of snakes” on the border already deterred passage.
The wall’s reemergence as a top priority within the White House came after the Republican Party’s loss of the House in November’s midterm election, and after goading from conservative media kept Mr. Trump focused on the border wall, current and former White House officials said.
It wasn’t until December, as some government offices entered a 35-day shutdown amid the fight over wall funding, that Mr. Trump assembled a team of advisers devoted to getting it built. They turned out to be a divided group.
Jared Kushner, the president’s son-in-law, pushed for a broader deal with Democrats to provide protections for some immigrants living in the U.S. without permission, while Vice President Mike Pence sought to limit the scope of the negotiations. Mr. Kushner cautioned the president about issuing a national emergency order; Mick Mulvaney, newly installed as acting chief of staff, pressed for it.
Mr. Trump’s first-term wins had clear leaders: Former economic adviser Gary Cohn delivered on tax cuts. Former White House counsel Don McGahn shepherded two Supreme Court nominations onto the High Court, and Mr. Kushner is credited with pushing a criminal-justice overhaul that reduced prison sentences on some drug convictions.
The wall project had no such director. Last summer, a White House official seeking a senior aide in charge of the border wall was sent to Doug Fears, a deputy to national security adviser John Bolton. Mr. Fears, a rear admiral in the U.S. Coast Guard, is neither a senior administration official nor in charge of border-wall issues, a spokesman said.
By then, frustration was setting in with the president, and in August, he asked Mr. Mulvaney about declaring a national emergency. “You know, that makes a lot of sense,” Mr. Mulvaney told him. The then-budget director started working on plans, which were only finalized last week, according to a senior White House official.
As a candidate in 2016, Mr. Trump described building the wall as a simple job. He tied it to his identity as a builder, a career that dates to the 1960s when he joined his father’s real-estate company. As the author of “The Art of the Deal,” Mr. Trump put his reputation as a negotiator on the line.As Mr. Trump prepares for re-election—and for voters to scrutinize his record as president—he has adjusted his message. “If you think it’s easy with these people, it’s not easy,” Mr. Trump said, referring to Congress, during a rally last summer in West Virginia... Another early advocate of the wall was Stephen K. Bannon, the Trump campaign’s chief executive who became Mr. Trump’s top strategist and senior counselor. The promise to build a wall “and eventually make Mexico pay for it” was written on a dry erase board in Mr. Bannon’s West Wing office, competing for attention among other campaign promises. It was one of more than four dozen pledges on the white board, organized by policy area.
On another office wall, Mr. Bannon listed the goals for Mr. Trump’s first 100 days in office, listed on 36 pages of computer paper taped together. The legislative agenda included the “End Illegal Immigration Act,” proposed legislation that would have made the wall a priority. It was never introduced.
The project was made tougher without a supportive constituency in Washington to pressure lawmakers. Labor unions don’t view the border wall as a job stimulus, and business didn’t see clear benefits to the bottom line.
Mr. Kushner and Robert Lighthizer, the U.S. trade representative, also left some West Wing aides with the impression that the president should put the wall on hold while renegotiating the North American Free Trade Agreement... Messers. Kushner and Cohn later suggested outfitting the wall with solar panels, and possibly selling the energy to Mexico. The president loved the idea so much he adopted it as his own... Advisers suggested that Mexico would indirectly pay for the wall through a renegotiated Nafta. The revised trade deal, which hasn’t been approved by Congress, includes no language about a border wall.
In March, Congress completed a $1.3 trillion spending package, but included just $1.6 billion for a border barrier, with most of the money intended to replace existing fencing. It banned the money from being spent on concrete slabs or any other of the wall prototypes the White House was considering.
Upset there wasn’t more money for the wall, Mr. Trump threatened to veto it. At an emergency meeting at the White House with his staff and Republican leaders, Mr. Trump learned that the spending bill incorporated all of the border wall money that was requested in the White House budget proposal.
“Who the f— put that in my request?” Mr. Trump shouted.
Mr. Trump directed his fury at Marc Short, then his legislative affairs director, while John Kelly, the former chief of staff was silent. Mr. Kelly was the Department of Homeland Security secretary when the agency made the request for border funds the year before.
Mr. Mulvaney, who assembled the White House’s budget proposal, privately encouraged the president to veto it and suggested Mr. Trump blame then-House Speaker Paul Ryan, who should have sought more wall money.
Mr. Ryan and Senate Majority Leader Mitch McConnell told Mr. Trump they would push for more wall money in the next round of spending bills at the end of the year. During the fall, Mr. Trump was energized by crowds chanting “built the wall” during his many midterm-election rallies.
Soon after the November election, it became clear to the White House that lawmakers weren’t interested in a fight over border-wall money. Mr. Trump decided to carry out his threat to close what he could of the U.S. government.
During the shutdown last month, Mr. Trump complained to conservative allies that Mr. Ryan should have pushed harder for wall funds. Last weekend, the president complained about it again during a meeting with a Republican member of the committee that negotiated the latest deal.
“Mr. President,” the Republican lawmaker said, “we gave you everything you asked for.”
The outgoing attorney general did more to enact the president’s priorities than any other member of the Cabinet, but that didn’t save him from White House hostility.
The paradox of Jeff Sessions’s tenure as attorney general is that no member of the Trump administration was so beleaguered and disparaged by President Trump, but no member got as much done.Even as he endured persistent verbal abuse from the president, Sessions steamed forward on a range of conservative social-policy priorities, aggressively reorienting the Justice Department’s stances on immigration, civil rights, and criminal justice, among other issues. In an administration plagued by incompetent and ineffective figures, Sessions was a paragon of efficacy—a distinction that horrified his many opponents, but did nothing to win Trump’s trust or affection.
- When it came time for Trump to pull the plug on the Deferred Action for Childhood Arrivals program, as he had promised he would during the 2016 campaign, the president got cold feet, but Sessions was happy to be the public face of the withdrawal. It was Sessions who
- tried to follow through (unsuccessfully) on Trump’s threat to cut off funding to sanctuary cities. It was Sessions who issued new guidance to immigration judges. And, most prominent, it was Sessions who
- went to the border to announce the Trump administration’s decision to separate migrant children from their parents.
Sessions openly said the plan to split families up was intended to deter migrants, even as other administration officials said otherwise. The policy was met with widespread and appropriate horror, and Trump eventually pulled back—but he had backed the plan before that, and Sessions had followed through... But these weren’t just Sessions’s pet issues. They were Trump’s as well. Hardline immigration policies, giving police free rein, fighting phantom voter fraud—these were all signature Trump projects. Sessions had been the first U.S. senator to endorse Trump, and Trump took from him a range of policy concepts—especially on immigration—as well as a top adviser, Stephen Miller. But Sessions’s stewardship of those projects didn’t return him to favor with Trump, who, according to Bob Woodward’s book Fear, called Sessions “mentally retarded” and a “dumb Southerner.”.. When McGahn’s departure was announced in August, I wrote that he’d been the most effective person in the West Wing, through his stewardship of judicial appointments. But Trump disliked and distrusted McGahn, and seemed eager to have him gone... Of course, the same issue poisoned both Sessions’s and McGahn’s relationships with Trump: the Russia investigation, and especially Special Counsel Robert Mueller’s takeover of it... Trump was angry that neither man had protected him. He raged at Sessions’s lack of “loyalty” and complained that Attorney General Eric Holder had “totally protected” Barack Obama. (What he meant by that is unclear.) He twice instructed McGahn to fire Mueller, and McGahn twice refused, once threatening to resign... Attorney General Matthew Whitaker assumes control of Mueller’s probe. Whitaker was outspokenly critical of the special counsel’s inquiry before joining the administration, so Trump may now have a leader of the Justice Department who is more pliable on the Mueller front. But the president is unlikely to find an attorney general who will do as much to move his priorities forward as Sessions did—and the new attorney general will come into the job knowing that loyalty and efficacy aren’t enough to garner favor with Trump.