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.
Chief Justice John Roberts used every euphemism in the thesaurus this week to accuse the Trump administration of lying.
“The evidence tells a story that does not match the . . . explanation.”
“The sole stated reason — seems to have been contrived.”
There was “a significant mismatch between the decision . . . and the rationale.”
The “explanation . . . is incongruent with what the record reveals.”
Furthermore, it was a “distraction” from the truth, “based on a pretextual rationale” and lacked “a rational connection between the facts found and the choice made.”
There are several kinds of success stories. We emphasize the ones starring brilliant inventors and earnest toilers. We celebrate sweat and stamina. We downplay the schemers, the short cuts and the subterfuge. But for every ambitious person who has the goods and is prepared to pay his or her dues, there’s another who doesn’t and is content to play the con. In the Trump era and the Trump orbit, these ambassadors of a darker side of the American dream have come to the fore.
.. What a con Holmes played with Theranos. For those unfamiliar with the tale, which the journalist John Carreyrou told brilliantly in “Bad Blood,” she dropped out of Stanford at 19 to pursue her Silicon Valley dream, intent on becoming a billionaire and on claiming the same perch in our culture and popular imagination that Steve Jobs did. She modeled her work habits and management style after his. She dressed as he did, in black turtlenecks. She honed a phony voice, deeper than her real one.
She spoke, with immaculate assurance, of a day when it might be on everyone’s bathroom counter: a time saver, a money saver and quite possibly a lifesaver. She sent early, imperfect versions of it to Walgreens pharmacies, which used it and thus doled out erroneous diagnoses to patients. She blocked peer reviews of it and buried evidence of its failures.
This went on not for months but for years, as Holmes attracted more than $900 million of investment money and lured a breathtakingly distinguished board of directors including two former secretaries of state, George Shultz and Henry Kissinger; a former secretary of defense, William Perry; and a future secretary of defense, James Mattis. What they had before them wasn’t proof or even the sturdy promise of revolutionary technology. It was a self-appointed wunderkind who struck a persuasive pose and talked an amazing game.
She was eventually found out, and faces criminal charges that could put her in prison. But there’s no guarantee of that. Meantime she lives in luxury. God bless America.
Theranos was perhaps an outlier in the scope of its deceptions, but not in the deceptions themselves. In an article titled “The Ugly Unethical Underside of Silicon Valley” in Fortune magazine in December 2016, Erin Griffith tallied a list of aborted ventures with more shimmer and swagger than substance, asserting: “As the list of start-up scandals grows, it’s time to ask whether entrepreneurs are taking ‘fake it till you make it’ too far.”
A quarter of the federal government has shut down, and most of America doesn’t care. There’s wisdom in that response because this showdown over spending, the third this year, is a mostly symbolic political exercise that won’t make much difference no matter who wins.
President Trump wants $5 billion for security at the Mexican border, while Democrats are offering no more than $1.6 billion. Mr. Trump wants to be able to say he won the money for the “wall” he campaigned on, while Democrats don’t want to give him that victory so they say their money can only be spent on “border security.”
This is the tyranny of small differences, and neither choice will solve our national immigration dilemmas. A physical barrier has worked in some places like San Diego. But migrants then look for other illegal entry points. Building the wall across the entire 1,954-mile border would be expensive and it wouldn’t stop illegal immigration since most illegals arrive by overstaying their legal visas.
The best solution, as ever, is to reduce the incentive for people to come illegally by creating more ways to work legally in America. Most migrants come to work, and at the current moment there are plenty of unfilled jobs for them. A guest-worker program would let migrants move back and forth legally, ebbing and flowing based on employer needs, while reducing the ability of gangs and smuggler “coyotes” to exploit vulnerable migrants... Democratic leaders want to show their base how tough they are for standing up to Mr. Trump, even if it means hanging the Dreamers out to dry. The left never wants any immigration compromise because it wants the election issue.
Mr. Trump can’t decide what he really wants and seems to have no political strategy for achieving whatever it is.
- First he surprised everyone by taking public ownership of a possible shutdown in a meeting in the Oval Office with Democratic leaders.
- Then he agreed to Senate Majority Leader Mitch McConnell’s proposal to fund the government for two months to move the funding debate into the new year when Democrats run the House.
- Then the House GOP Freedom Caucus and talk-radio hosts stomped their feet, and Mr. Trump flipped back to welcoming a shutdown and tweeting that “it could be a long stay.”
To what end? Mr. Trump’s shutdown tactic is to hold his breath until the other side gives in. This didn’t work for Newt Gingrich in 1995, though at least Newt was battling Bill Clinton over major reforms in the entitlement state. Mr. Trump is holding his breath over a mere $3.4 billion in spending for a piece of political symbolism.
The Freedom Caucus has long argued that Republicans can win a shutdown standoff if they hold their breath long enough. Perhaps Mr. Trump will try that, and at least we’d get a political market test of which party suffers most as the standoff continues. Yet if it ends with the two sides compromising on something like $3 billion in border funding, Americans can be forgiven for thinking the whole thing was a pointless political farce.
This was the week Donald Trump became president.
Or at least the week he became the president we were always expecting. He ceased bothering to pretend that he was ever going to do the job in any normal sense of the word. He decided to totally own the whole, entire joke that he is.
He started hiring people right off TV. He extended his tiny fingers into his giant flat screen, “Purple Rose of Cairo”-style, and dragged cable conservatives directly into the administration.
We’ve always known Trump makes stuff up. But now he has stopped bothering to pretend that he doesn’t. Truthful hyperbole is out. Outlandish fabrication is in. Trump began bragging to Republicans at a private fund-raiser in St. Louis Wednesday: Oh, get a load of this trade stuff I made up to outfox that fox, Justin Trudeau. I felt bad doing it to such a nice, good-looking guy. But it’s hilarious!
He is no longer bothering to pretend that governing involves a learning curve. Now he finds it’s clever to be a fabulist, concocting phony facts about the trade deficit when talking to the Canadian prime minister — one of our closest allies — or inventing a story for donors about how Japanese officials test American cars by dropping a bowling ball on their hoods from 20 feet up to see which ones dent.
.. Trump & Friends presented this dizzying White House purge as a twisted version of him growing into the job, even as everyone else felt he was going in the opposite direction
.. Trump got his next moment of gross exaltation when Jeff Sessions, frantically trying to save his own job, fired Andrew McCabe hours before he became eligible for his government pension and on his birthday weekend. John Brennan, the former director of the CIA, tweeted that Trump will take his “rightful place as a disgraced demagogue in the dustbin of history.” Then the president’s lawyer, John Dowd, issued a statement Saturday saying he will “pray” that Rod Rosenstein “will follow the brilliant and courageous example” of Sessions and end the Russia investigation entirely.
Trump is giddy about all the CHAOS — he capitalized it on Twitter — feeling that he’s ridding himself of any idiots who called him a moron or dumb as a rock and any economists who don’t understand what a great dealmaker he is... It’s the final Foxification of politics. Trump spends all his time watching Fox News, basing his opinions and tweets on it, and now he’s simply becoming one with it. He is even willing to overlook his distaste for the yeti mustache of the warmongering John Bolton and consider the Fox News analyst as a replacement for McMaster.
Roger Ailes would be so proud, if he were still alive and harassing women.
.. Trump thinks he’s a fabulously devious manager creating “great energy,” with great ratings coming from his talent for theatrical twists and turns. But he’s really inhumane, playing people against one another and widely discussing successors for officials who haven’t even been officially informed that they’re walking the plank. And, far from the A-team he promised, he’s hired a bunch of pathetic, disgusting swamp schnorrers who can’t stop using taxpayer money to fund their office furniture or office redesign or luxury plane trips with their wives.
“I like conflict,” Trump said this month at a press conference with the Swedish prime minister, smacking his fists together and adding, “I like watching it, I like seeing it, and I think it’s the best way to go.”
Never mind that a lot of the country — and the world — craves stability.
.. “I think Trump is royally pissed about the Mueller subpoena of the Trump Organization records,” Trump biographer Michael D’Antonio says about the special counsel crossing the president’s red line. “He fears the nakedness of his true business activities being revealed far more than the shame of ‘Access Hollywood’ or Stormy Daniels. Unlike the show of blank paper in file folders conducted when he supposedly stepped away from his businesses, this will require real documents, and I doubt he can count on people lying for him.”
In denigrating anyone who called the President out for his slurs, Senators Cotton and Perdue (pictured here in August) show their willingness to humiliate themselves on his behalf.
.. According to the Post, “Three White House officials said Perdue and Cotton told the White House that they heard ‘shithouse’ rather than ‘shithole,’ allowing them to deny the President’s comments on television over the weekend.” Is that how people sleep at night in Trump’s Washington?
And they are poisonous.
.. It should be clear that the house/hole distinction, should it even have existed, would not count as “allowing” Cotton and Perdue to deny the President’s remarks on any terms. But the ones on which they did so are particularly egregious, because they offered themselves as witnesses to other senators’ supposed dishonor.
.. Senator Dick Durbin, Democrat of Illinois, had confirmed the reported phrase “shithole countries” publicly; Senator Lindsey Graham, of South Carolina, had backed up the press accounts more obliquely but unmistakably. Senator Tim Scott, his Republican colleague, who is African-American, told reporters that Graham had confirmed the essentials of the report to him; Graham didn’t dispute that. Graham had also publicly said that there was a racial aspect to the remarks, which he said he’d called the President on, saying, by his account, “America is an idea, not a race.”
.. Cotton, appearing on Sunday news programs, specifically disparaged Durbin’s credibility. “I didn’t hear it, and I was sitting no further away from Donald Trump than Dick Durbin was,”
.. Cotton told John Dickerson on CBS’s “Face the Nation.” “And I know, and I know what Dick Durbin has said about the President’s repeated statements is incorrect.” He also said that Durbin had a history of dishonesty.
.. When Dickerson asked Cotton about the thrust of the remarks, as opposed to the President’s word choice, Cotton said, “I did not hear derogatory comments about individuals or persons.” Perhaps there was another rationalization in there: he was being derogatory about whole populations, not individuals!
.. in the next sentence, Dickerson made the terms of Cotton’s lies clear when he asked, “So the sentiment is totally phony that is attributed to him?”—meaning to the President. Cotton answered, “Yes.”
.. At the same time, Perdue was busy on ABC’s “This Week,” telling George Stephanopoulos, in even more categorical terms, that Durbin was guilty of a “gross misrepresentation” of Trump’s remarks, saying that such “language” was simply not used.
.. When Stephanopoulos noted that there were multiple sources who said otherwise—indeed, the President himself reportedly called friends to brag about what he had said
.. Congressmen Kevin McCarthy, Republican of California, who is the House Majority Leader and has not commented (but, as the Washington Post noted, stood quietly next to the President when he denied the reports on Sunday; Trump also called himself the “least racist person”
.. members of his Administration at first thought that the controversy could be settled in the shady realm of “do not recall,”
.. They were caught by surprise when he started tweeting about how the accounts of his language were outright false.
.. But perhaps he also listened to what the other Republicans were saying, and had an insight that they would, indeed, back him up. It was a bully’s triple play:
- first, he got to slur whole nations.
- Then he got his guys to gang up on anyone who called him out for it, which produced the final prize:
- the acknowledgement that the Republican lawmakers were his guys, subordinate and willing to humiliate themselves on his behalf.
.. What is notable is that, at first, Cotton and Perdue had tried, in a joint statement, to hedge by saying that they did “not recall the President saying these comments specifically.” But, as his lies escalated, so did theirs, to the point where they were backing up the idea that the media was involved in a fake-news conspiracy.
.. But it is, apparently, hard to lie halfway for Trump; he won’t let you.
The president signals his enthusiasm for amnesty. Why would immigration activists give an inch?
I argued during the GOP nomination battle that Trump is a phony on immigration. He camouflages this fact in provocative (and sometimes noxious) rhetoric about Mexicans and a border wall — a wall that would be physically impossible to build as he described it and that Mexico was never going to pay for. (Have you noticed our coming budget battle is over his insistence that American taxpayers foot the bill?) But if you listened carefully, there was always an amnesty subtext. Recall his truly absurd claims that he would round up and deport 11 million people and then bring most of them back with legal status.
Trump wants to be all things to all people: the restrictionist ideal of his rabid base as well as an amnesty enthusiast in the mold of a New York City Democrat.
The DACA sleight of hand proves the point. On the hustings, restrictionist Trump promised to rescind DACA as soon as he took office (and some people actually believed him). Of course, he did not do so . . . because he doesn’t think it should be rescinded; he thinks it should be law. But he wants credit for ending it — for being both against and for it. –
.. If DACA were narrowly drawn, strictly to benefit the immigrants whom Democrats and the GOP establishment portray as the typical DREAMer
.. There are two reasons it is not. First, it is not narrowly drawn; rather, it designed to shoehorn a broader array of illegal aliens into legal status. Second and more significantly, because Democrats (and many pro-amnesty Republicans) are insufficiently sympathetic to the demands of Americans for better security and tighter immigration controls, there must be tradeoffs if the ruling class is to be motivated to negotiate.
.. Art of the deal, huh?