It’s Not Nice to Lie to the Supreme Court

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.

Supreme Court Blocks Citizenship Question From 2020 Census for Now

Trump administration’s official explanation for adding the question ‘seems to have been contrived,’ according to the majority opinion

WASHINGTON—A divided Supreme Court on Thursday prevented the Trump administration, for now, from asking U.S. residents on the 2020 census whether they are citizens, a considerable setback for the White House.

The court, in an opinion by Chief Justice John Roberts, didn’t issue a definitive decision finding the citizenship question unlawful, but it raised concerns about the Trump administration’s stated reason for adding the question to the census.

In strong language, the chief justice, joined by the court’s four liberal justices, said the administration’s official explanation “seems to have been contrived.”

The court sent the case back for more proceedings, leaving the 2020 census in a state of uncertainty—though if the deadline for finalizing the form is July 1, as census officials said this week, the question won’t be on it. However in at least one government filing, a census official gave the final date as Oct. 31.

Three different U.S. district judges have ruled that including the question was unlawful, with each finding that Commerce Secretary Wilbur Ross had not provided the public with his real reasons for doing so.

The Supreme Court’s ruling, which comes at a time of deeply divided immigration politics, could have considerable ramifications for the U.S. population count, as well as the drawing of congressional districts and the allocation of more than $600 billion in federal funds that are based on census data.

The census, mandated by the Constitution, counts all U.S. residents, regardless of citizenship or residency status.

A group of 18 states that sued Mr. Ross, as well as some career Census Bureau staffers, said adding a citizenship question would dampen response rates in immigrant-heavy communities, even in households with legal residents. If that happens, those communities could see a smaller piece of the federal pie, both in political representation and government funding.

The Trump administration said Mr. Ross, whose department oversees the Census Bureau, had the legal authority to include the question and determined that the benefits of having the citizenship data outweighed the potential of a lower response rate. It also pointed to earlier census surveys in the nation’s history that had asked about citizenship.

Mr. Ross’s explanations for adding the question have shifted over time. He and other Trump administration officials have said that census citizenship data would help the Justice Department with its efforts to comply with the Voting Rights Act, which protects minority voting rights.

Legal challengers in the case have said the administration’s reasons were the opposite—to dilute minority representation—and they said additional evidence has come to light recently that supports their claims. A Maryland federal judge this week said that evidence, which came from the files of a GOP political consultant who died last year, “potentially connects the dots between a discriminatory purpose—diluting Hispanics’ political power—and Secretary Ross’s decision.”

The evidence wasn’t directly before the Supreme Court when it took up the case, though it has received additional legal filings from both sides in recent weeks. New lower court proceedings are pending, though it isn’t clear what impact, if any, those will have after the high court’s ruling.

In April when the Supreme Court heard oral arguments on the census, President Trump said Americans deserved to know how many citizens were among those residing in their country.

Federal law prohibits the Census Bureau from sharing survey answers with federal immigration authorities, but a survey commissioned by the bureau last year found that asking about citizenship could be a substantial barrier to getting people to participate.

The whole country hasn’t been asked about citizenship on the decennial survey since 1950, but the government in recent years has asked a smaller sample of U.S. residents about their status.

The citizenship question touches on the broader immigration agenda that has been a central focus of the Trump presidency. Mr. Trump has barred travel by people from certain Muslim-majority countriesa ban the Supreme Court upheld last year. Mr. Trump’s administration also has attempted to limit immigrant claims for asylum; tried to cancel Obama-era benefits for illegal immigrants who came to the U.S. as children; and sought to build new barriers on the southern border. All of those efforts remain tied up in the courts.

Trump’s stunning decision to escalate trade wars with China and Mexico signals a turning point for U.S. policy

President Trump’s plan to slap new tariffs on Mexican imports, weeks after escalating his trade war with China, leaves the United States fighting a multi-front campaign that threatens more instability for manufacturers, consumers and the global economy.

The president’s bombshell announcement that he would impose 5 percent tariffs on Mexican imports, with the possibility of raising them to 25 percent if Mexico doesn’t stop migrants from crossing into the United States, left some economists fearing there were few limits to Trump’s appetite for trade conflict.

“In our view, if the U.S. is willing to impose tariff and non-tariff barriers on China and Mexico, then the bar for tariffs on other important U.S. trading partners, including Europe, may be lower than we previously thought,” Barclays economists said in a research note. “We think trade tensions could escalate further before they de-escalate,” Barclays added.

Adam Posen, president of the Peterson Institute for International Economics, called Trump’s move against Mexico a turning point for financial markets and the U.S. economy.

In global markets Friday, investors spooked by new tariff threats sought safety in German government bonds and the Euro rather than their customary dollar-denominated havens. This “seems to me an indicator that the concerns about the U.S. are rising,” Posen said.

The president’s latest move rocked business leaders who were already scrambling to reshape supply chains to avoid fallout from the U.S. confrontation with China. The added uncertainty may paralyze executives who can’t be sure their next supply chain location will be any safer than their last.

“A lot of companies feeling pressure to get out of China are looking at Mexico if they want to serve the US market, Vietnam if they’re more focused on Asia,” said William Reinsch, a former Commerce Department trade official. “Trump’s action yesterday scrambles all those plans.”

In one example of a company caught in the crossfire, GoPro of San Mateo, Calif., last month announced it would move manufacturing of some of its cameras from China to Mexico, so that it could stop paying tariffs to import them to the United States — tariffs resulting from the U.S. trade war with China. Weeks later, GoPro now faces new tariffs to import those goods from Mexico. The company declined to comment Friday.

As U.S. companies race to find new tariff-free places to manufacture, so far few have reported returning production to the United States, despite the president’s stated aim of using trade policy to help bring jobs back home. Many are still seeking alternative locations overseas, where labor is cheaper.

Trump said he would impose the new tariffs because the Mexican government wasn’t doing enough to stem the flow of migrants, many of whom travel through Mexico from Central America. Some White House officials who support Trump’s approach believe the threat of tariffs is the only way to get the attention of Mexican leaders.

The Mexican government tried to defuse the tension Friday, saying the two sides would meet in Washington on Wednesday for high-level talks.

If no solution is found, Mexico is certain to impose retaliatory tariffs on U.S. goods, with likely targets including U.S. pork, beef, wheat and dairy products, said Former Mexican diplomat Jorge Guajardo.

Some prominent Republicans, including Senate Finance Chairman Charles E. Grassley, raised concerns that the new tariffs could threaten a trade agreement the Trump administration clinched only months ago with Mexico and Canada, to replace the 1994 North American Free Trade Agreement.

Others said the about-face treatment of Mexico would damage Trump’s ability to negotiate trade deals it is pursuing with other partners, including China and Europe.

“You can’t negotiate a trade agreement with someone and then turn around and whack them,” said Douglas Holtz-Eakin, a Republican economist and former Congressional Budget Office director.

In late March, Trump threatened to shut the entire southern border to curb illegal immigration, but backed down a week later after an outcry. That has left some wondering how seriously they should take the latest tariff threat.

If Trump follows through with new tariffs on Mexico, it would hurt U.S. economic growth and increase the possibility of the Federal Reserve reversing course and cutting interest rates this year, economists said.

The drag to the US economy could be meaningful, especially if the tariffs reach 25%,” the upper limit that Trump has set, Bank of America Merrill Lynch economists wrote Friday. Even if the tariff remains at 5 percent, the effective cost could be higher because many parts cross the border several times as products are assembled, and the tariff must be paid upon each crossing into the United States.

U.S. automakers will be among the principal casualties. Last year, the United States imported roughly $350 billion in merchandise from Mexico, including about $85 billion in vehicles and parts, according to the International Trade Administration.

A full 25 percent tax “would cripple the industry and cause major uncertainty,” according to Deutsche Bank Securities.

“The auto sector – and the 10 million jobs it supports – relies upon the North American supply chain and cross border commerce to remain globally competitive,” said Dave Schwietert, interim president of the Auto Alliance, an industry group. “This is especially true with auto parts which can cross the U.S. border multiple times before final assembly.”

“Widely applied tariffs on goods from Mexico will raise the price of motor vehicle parts, cars, trucks, and commercial vehicles – and consumer goods in general — for American consumers,” the industry group said. “The potential ripple effects of the proposed Mexican tariffs on the U.S. North American and global trade efforts could be devastating.”

Consumers could pay up to $1,300 more per vehicle if the tariffs are implemented, according to Torsten Slok, chief economist for Deutsche Bank Securities.

Retailers, technology companies and textile manufacturers also will be hurt. U.S. mills now ship yarn and fabric to Mexico, where it is turned into apparel and exported back to American retailers. Last year, the U.S. textile industry exported $4.7 billion in yarn and fabrics to Mexico, its largest single market.

“Adding tariffs to Mexican apparel imports, which largely contain U.S. textile inputs, would significantly disrupt this industry and jeopardize jobs on both sides of the border,” said Kim Glas, president of the National Council of Textile Organizations.

The new dispute with Mexico came as the U.S.-China trade conflict continued to deepen.

China on Friday announced it would establish a blacklist of “unreliable” foreign companies and organizations, effectively forcing companies around the world to choose whether they would side with Beijing or Washington.

The new “unreliable entities list” would punish organizations and individuals that harm the interests of Chinese companies, Chinese state media reported, without detailing which companies will be named in the list or what the punishment will entail.

Chinese reports suggested the Commerce Ministry will target foreign companies and groups that abandoned Chinese telecom giant Huawei after the Trump administration added Huawei to a trade blacklist this month, which prohibited the sale of U.S. technology to the Chinese company.

At a time when Western corporations have cut back executive travel to China after authorities detained two Canadians on national security grounds in December, the new blacklist sent another shock wave through the business community.

“I think foreign and especially U.S. firms now have to worry that China is creating a new ‘legal pretext’ to at least impose exit bans on foreign individuals who make this new list, if not worse,” said Bill Bishop, the editor of the Sinocism newsletter, referring to the Chinese practice of not allowing designated foreigners to leave China.

Aside from the new blacklist, China in recently days also escalated threats to stop selling the U.S. so-called rare earths — 17 elements with exotic names like cerium, yttrium and lanthanum that are found in magnets, alloys and fuel cells and are used to make advanced missiles, smartphones and jet engines.

Analysts said it could take years for the United States to ramp up rare-earths production, after its domestic industry practically disappeared in the 1990s. Roughly 80 percent of U.S. imports of the material come from China, according to the United States Geological Survey.

The People’s Daily, the Communist Party’s official mouthpiece, carried a stark warning for the United States this week in an editorial about rare earths: “Don’t say we didn’t warn you.”

That commentary surprised China experts because the People’s Daily, which often signals official positions with subtly codified language, uses that phrase sparingly: It famously appeared before China launched border attacks against India in 1962 and Vietnam in 1979.

Kushner’s immigration plan is a version of a discriminatory effort from more than a century ago

It’s a stretch to place the names of Jared Kushner and Henry Cabot Lodge in the same sentence; it’s difficult even to imagine that Lodge, the aristocratic Massachusetts senator who dominated the nation’s immigration debate from the 1890s into the 1920s, would give Kushner the time of day. But Kushner’s new immigration plan, aimed at reducing immigration from specific nations through the virtual elimination of what he and others have disparaged as “chain migration,” and the simultaneous valorization of the highly educated, is simply a version of a blatantly discriminatory effort Lodge initiated more than a century ago.

A man of uncommon refinement and even greater arrogance, Lodge was a Harvard PhD., the erudite author of more than a dozen books and, in many ways, the archetype of the Boston Brahmin of a century ago. His friend Thomas B. Reed, speaker of the House in the closing years of the 19th century, said Lodge arose from “thin soil, highly cultivated.” Lodge himself celebrated his fellow Brahmins for “their intense belief in themselves, their race, and their traditions.” His idea of the west, said another colleague, was Pittsfield, Mass. Look at John Singer Sargent’s remarkable likeness of the young Lodge that hangs in the National Portrait Gallery. You almost feel you are despoiling him by your very presence.

As well you might have been, if you were Italian, or Greek, or a Russian Jew or from any of the other national groups he had in mind in 1895, when he rose on the Senate floor to introduce the first restrictive immigration bill aimed at Eastern and Southern Europeans. The widening streams of emigres pouring out of the impoverished lands between the Baltic and the Mediterranean had broadened to flood stage, and Lodge determined that the best way to keep them out was to make them submit to a literacy test.

Aware of the scant educational opportunities in most of these countries, he told his fellow senators that his bill “will bear most heavily upon the Italians, Russians, Poles, Hungarians, and Asiatics, and very lightly, or not at all, upon English-speaking emigrants.” And, he argued, why should it be otherwise? “The races most affected” by his test, he explained, were those “with which the English-speaking people have never hitherto assimilated, and are alien to the great body of the people of the United States.”

Lodge’s talk was a hit. His closest friend, Theodore Roosevelt — at the time the New York City police commissioner — called it “an A-1 speech,” which pleased Lodge greatly. He was probably even more delighted with the reaction of the “Russian-Nihilistic Club” of Chicago, which burned him in effigy.

Eagerly endorsing the House version of the bill, Lodge’s Massachusetts colleague Rep. Elijah A. Morse declared himself delighted to see that it would exclude “undesirable immigration” from “southern Europe, from Russia, from Italy, and from Greece” — people, he said, who brought to the United States little else than “an alimentary canal and an appetite.”

Lodge’s literacy test bill passed with ease. But on President Grover Cleveland’s very last day in office, he struck it down with a veto, and there were not enough votes in the Senate to override.

Over the next 20 years, Lodge and his colleagues tried again and again, introducing a version of the literacy test into nearly every Congress. Three times it was approved by both chambers; three times it was struck down by veto. Only with anti-European fervor spiking on the brink of World War I, and new theories of “racial eugenics” shaping public debate, was it finally enacted over President Woodrow Wilson’s second veto, in 1917.

But for the anti-immigrationists, the new law was too little too late, and rendered ineffective by a shapely irony: Its two-decade presence on the congressional front burner had encouraged the education of the very people he wished to keep out. The Immigration Restriction League executive committee reported the baleful news that the Italian government was “spending millions on their schools in the last few months in view of the pending bill.” An IRL official wrote, “It is probable that primary schools will be presently established in many parts of Europe,” and consequently the newly enacted literacy test “is likely to diminish in value as a means of restriction as time goes on.”

A few years later, the xenophobes finally got what they wanted when Congress enacted the Immigration Act of 1924, which didn’t mess with half-measures: It slashed immigration by means of brutal quotas aimed at precisely those countries Lodge had singled out nearly three decades earlier. Where once more than 220,000 Italians arrived each year, the number was reduced by the new quota to fewer than 6,500. In 1921, the lands comprising most of the former Russian Empire had sent nearly 190,000 emigrants to the United States; the 1924 law accommodated exactly 7,346.

For the next 41 years, this brutally exclusionary act remained in place, shaping the composition of the nation, and dooming thousands — if not millions — to deprivation and death. When it was finally revoked by Congress in 1965, President Lyndon B. Johnson signed the new law on Liberty Island, in the shadow of the great statue that had been designed to welcome the unwanted. Had he chosen to give a history of what the 1924 act had been intended to do, Johnson might have invoked the words that Cleveland used in his veto message back in 1897: The literacy test,Cleveland had said, was “the pretext for exclusion.”

I don’t think Lodge would have disagreed, nor, if he’s being honest with himself, would Kushner. A plan that sets up “educational standards” as the primary benchmark for immigration isn’t likely to certify too many people fleeing from, say, Honduras or Yemen. Reeling in the numbers of immigrants granted priority to reunite with family members already here will similarly disadvantage much of Latin America, Africa and the Middle East. Jared Kushner — and Stephen Miller and President Trump — likely know very little about Henry Cabot Lodge. But he would be proud of them.