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.