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.
What rulers crave most is deniability. But with the murder of the Saudi journalist Jamal Khashoggi by his own government, the poisoning of former Russian spies living in the United Kingdom, and whispers that the head of Interpol, Meng Hongwei, may have been executed in China, the curtain has been slipping more than usual of late. In Riyadh, Moscow, and even Beijing, the political class is scrambling to cover up its lethal ways.
Andrew Jackson, was a cold-blooded murderer, slaveowner, and ethnic cleanser of native Americans. For Harry Truman, the atomic bombing of Hiroshima spared him the likely high cost of invading Japan. But the second atomic bombing, of Nagasaki, was utterly indefensible and took place through sheer bureaucratic momentum: the bombing apparently occurred without Truman’s explicit order.
.. Since 1947, the deniability of presidential murder has been facilitated by the CIA, which has served as a secret army (and sometime death squad) for American presidents. The CIA has been a party to murders and mayhem in all parts of the world, with almost no oversight or accountability for its countless assassinations. It is possible, though not definitively proved, that the CIA even assassinated UN Secretary-General Dag Hammarskjöld.
.. Many mass killings by presidents have involved the conventional military. Lyndon Johnson escalated US military intervention in Vietnam on the pretext of a North Vietnamese attack in the Gulf of Tonkin that never happened. Richard Nixon went further: by carpet-bombing Vietnam, Cambodia, and Laos, he sought to instill in the Soviet Union the fear that he was an irrational leader capable of anything. (Nixon’s willingness to implement his “madman theory” is perhaps the self-fulfilling proof of his madness.) In the end, the Johnson-Nixon American war in Indochina cost millions of innocent lives. There was never a true accounting, and perhaps the opposite: plenty of precedents for later mass killings by US forces.
.. The mass killings in Iraq under George W. Bush are of course better known, because the US-led war there was made for TV. A supposedly civilized country engaged in “shock and awe” to overthrow another country’s government on utterly false pretenses. Hundreds of thousands of Iraqi civilians died as a result.
Barack Obama was widely attacked by the right for being too soft, yet he, too, notched up quite a death toll. His administration repeatedly approved drone attacks that killed not only terrorists, but also innocents and US citizens who opposed America’s bloody wars in Muslim countries. He signed the presidential finding authorizing the CIA to cooperate with Saudi Arabia in overthrowing the Syrian government. That “covert” operation (hardly discussed in the polite pages of the New York Times) led to an ongoing civil war that has resulted in hundreds of thousands of civilian deaths and millions displaced from their homes. He used NATO airstrikes to overthrow Libya’s Muammar el-Qaddafi, resulting in a failed state and ongoing violence.
.. Under Trump, the US has abetted Saudi Arabia’s mass murder (including of children) in Yemen by selling it bombs and advanced weapons with almost no awareness, oversight, or accountability by the Congress or the public. Murder committed out of view of the media is almost no longer murder at all.
When the curtain slips, as with the Khashoggi killing, we briefly see the world as it is. A Washington Post columnist is lured to a brutal death and dismembered by America’s close “ally.” The American-Israeli-Saudi big lie that Iran is at the center of global terrorism, a claim refuted by the data, is briefly threatened by the embarrassing disclosure of Khashoggi’s grisly end. Crown Prince Mohammed bin Salman, who ostensibly ordered the operation, is put in charge of the “investigation” of the case; the Saudis duly cashier a few senior officials; and Trump, a master of non-stop lies, parrots official Saudi tall tales about a rogue operation.
A few government and business leaders have postponed visits to Saudi Arabia. The list of announced withdrawals from a glitzy investment conference is a who’s who of America’s military-industrial complex: top Wall Street bankers, CEOs of major media companies, and senior officials of military contractors, such as Airbus’s defense chief.
.. Political scientists should test the following hypothesis: countries led by presidents (as in the US) and non-constitutional monarchs (as in Saudi Arabia), rather than by parliaments and prime ministers, are especially vulnerable to murderous politics. Parliaments provide no guarantees of restraint, but one-man rule in foreign policy, as in the US and Saudi Arabia, almost guarantees massive bloodletting.
The president’s attempted ouster of Mr. Mueller seems plainly to have been intended to squelch Mr. Mueller’s investigation. Moreover, Mr. Trump’s attempts to conceal the obvious with a rank, virtually comical explanation provide additional evidence of guilty intent.
Mr. Mueller, the president argued, could not serve because, years before, he had resigned his membership at the Trump National Golf Club in Virginia because of a dispute over fees; or he needed to be fired because he had worked at the law firm that previously represented Mr. Trump’s son-in-law, Jared Kushner.
Why strain to concoct such feeble rationales unless the truth is indefensible?
.. The threat to resign carries with it the possible implication that he saw more: a crime, even a continuing conspiracy, that he wanted to distance both Mr. Trump and himself from.
.. It’s also consistent with the Washington tradition of self-serving conduct with an eye toward ensuring that you don’t go down with the ship.
.. Mr. McGahn’s pushback starts to look like a John Dean moment in the Trump administration: the juncture when actors in the White House, including the White House counsel, began to realize that there is, in Mr. Dean’s famous phrase, “a cancer on the presidency.”
.. And they know that there is more to come, beginning with Steve Bannon’s interview with the special counsel.
.. The events it details happened over six months ago but are only now coming to light. For whose benefit? The Times report is sourced to four people
.. Some number of people in the know have decided, perhaps in concert, to drop a bombshell now, one they kept to themselves for many months.
.. Perhaps from their insiders’ perches, they see that Mr. Mueller is wrapping up a case of obstruction that the president probably cannot defend against, because he is guilty. And perhaps they are jockeying to position themselves favorably, in the belief that Mr. Trump may be impeached (if not removed from office) and that there will be a broad reckoning,
.. he has every reason to think as he looks around him that his staff is wondering who will be next to go — by discharge or criminal charge — and there is nobody whose loyalty he can be sure of
“If evidence could be uncovered to convince The Times the charges should not be published, I did not believe, and do not believe, that that would be adverse to The Times’s interests.”
.. But as The Times’s leadership pointed out in its own statement, it never contemplated that the firm would contract with investigators to do opposition research on its own reporters. Unsurprisingly, The Times considered this conduct to be a “grave betrayal of trust,” and grounds to terminate the firm. It is hard to imagine how a lawyer of Mr. Boies’s caliber would not have anticipated this reaction.
It gets worse. Bar ethical rules prohibit lawyers not only from engaging in fraud, deceit or misrepresentation, but also from inducing others to do so. They also specifically forbid lawyers from directing non-lawyers to engage in prohibited conduct. Black Cube employees were in fact involved in such deceit; investigators misrepresented their identities in order to gain confidences from women whom Mr. Weinstein had harassed or assaulted.
Although Mr. Boies now claims that he had no knowledge of such practices, he surely was in a position to have such knowledge and had reason to suspect them. He had hired an organization known for hardball tactics and reportedly received reports of their findings.
.. Mr. Boies stated: “Mr. Weinstein has himself recognized that his contact with women was indefensible and incredible hurtful. In retrospect, I knew enough in 2015 that I believe I should have been on notice of a problem and done something about it.”
.. When leaders with such high visibility cut ethical corners, it sends a powerful and corrosive message.