The poison emanating from the White House in recent days has been so overwhelming that it’s hard to remember that something else held the country in thrall just a week ago: the prospect that President Trump would defy the Supreme Court and insist on adding a citizenship question to the 2020 census.
There’s a strong temptation to extract a triumphalist narrative from the president’s grim-faced and rant-filled surrender last Thursday. After all, didn’t the rule of law prevail — and perhaps even emerge stronger for having been so sorely tested? Didn’t the country dodge a “constitutional train wreck,” as Harry Litman, a former federal prosecutor and Justice Department official in the Clinton administration, wrote in The Washington Post the next day?
Well, maybe. But it was way too close for comfort. And given the Trump administration’s undimmed determination to lock the Supreme Court into a permanent if uneasy partnership, it’s important to realize that the train is still hurtling down the track, destination highly uncertain.
So as the census saga fades from view, it should be remembered, in all its bizarre aspects, not as outlier but as exemplar. Why should we have been shocked that a president would countermand his lawyers’ judgment with a tweet, requiring them to inform a flabbergasted federal district judge that no, the case was not over, and plunging the Justice Department into chaos over a holiday weekend? This is, after all, a president who makes foreign policy via Twitter.
Are you dismayed that the secretary of commerce, Wilbur Ross, would lie about the real reason the administration was demanding the citizenship question? Well, haven’t we become sadly accustomed to administration officials who can’t get their stories straight? Good luck trying to put together a coherent account, even now, of how many families were wrenched apart after crossing the southern border, where the children were sent, and who was responsible for the human rights catastrophe that unfolded in plain view.
Think of how many contingencies had to fall into place for the census story to end the way it did. Only Chief Justice John Roberts knows whether the revelations from the hard drive of a dead Republican operative, fortuitously brought to light weeks after the Supreme Court heard oral argument, influenced his conclusion that “the evidence tells a story that does not match the explanation the secretary gave for his decision.” There was already ample evidence to that effect, evidence that had led a federal district judge in New York, Jesse Furman, to invalidate the addition of the citizenship question.
But there’s no doubt that the new evidence played a role in events surrounding the Supreme Court’s June 27 decision. In a separate challenge to the citizenship question that had been litigated in Maryland, the new evidence led the United States Court of Appeals for the Fourth Circuit, days before the Supreme Court’s ruling, to permit a district judge, George Hazel, who had already ruled against the administration, to reopen the case to take evidence on whether the addition of the citizenship question was motivated by racial discrimination. As the justices surely knew, that meant that even if the Supreme Court overturned Judge Furman’s decision, which was based on administrative procedure and did not address a racial discrimination claim, the challenge to the citizenship question would have remained alive.
Then there was the thwarted effort by career Justice Department lawyers, suddenly charged with the unwelcome mission of carrying out the president’s will despite the Supreme Court’s ruling, to withdraw from the case. Both Judge Furman and Judge Hazel refused to accept the lawyers’ withdrawal; Judge Furman, citing a court rule that permits a lawyer to stop representing a client only for “satisfactory reasons,” noted that the government had provided no explanation, let alone a satisfactory one.
That may have been the moment when Attorney General William Barr concluded that the administration had to throw in the towel, whether or not the president agreed. With the district judges on high alert, any truthful explanation the lawyers gave would have been deeply hurtful: They would have had to disavow the discredited rationale they had originally provided for the citizenship question while disclosing that they were unwilling to help the administration to concoct a new one.
It’s worth saying a word about Judges Furman and Hazel, both appointed to the district bench by President Barack Obama. Both are former federal prosecutors. There was considerable grumbling from the left during the Obama years that the administration was naming too many former prosecutors who lacked any apparent ideology, rather than lawyers who had devoted their careers to progressive causes. I am not suggesting that progressive lawyers don’t make fine judges, but surely these two judges’ inside knowledge of how government lawyering is supposed to work helped fortify them in their resolve to make the government get this right. President Trump may disdain the numerous judges who have blocked him, labeling them part of the resistance, but in fact, I think these judges were trying to save the Justice Department from itself at a dangerous moment of institutional meltdown.
So the bottom line of the census saga is that yes, the rule of law prevailed in the end. But the rule of law hangs by a thread.
The Trump administration is back at the Supreme Court this week, seeking the justices’ help in its effort to build a wall on the southwestern border using $2.5 billion to be reallocated without congressional authorization from the Defense Department’s budget. With a preliminary ruling in May and a final order two weeks ago, a federal district judge in Oakland, Calif., Haywood Gilliam Jr. (another former federal prosecutor named by President Obama), blocked the Defense Department from spending money that Congress had not appropriated for that purpose.
The question then became whether the administration could obtain a stay of Judge Gilliam’s order so it could spend the money while appealing the case. The judge refused to grant a stay, and a panel of the United States Court of Appeals for the Ninth Circuit ruled 2-1 to uphold his refusal. “The public interest weighs forcefully against issuing a stay,” the appeals court majority wrote, because “the Constitution assigns to Congress the power of the purse.” The judges continued: “Under the Appropriations Clause, it is Congress that is to make decisions regarding how to spend taxpayer dollars.”
Claiming an emergency, the administration went to the Supreme Court last week seeking a stay. Justice Elena Kagan, who has supervisory jurisdiction over cases coming from the Ninth Circuit, gave the plaintiff, the Sierra Club, a deadline of this Friday to file a response to the administration’s application. What’s the emergency? The answer, evidently, is that the end of the current fiscal year comes up on Sept. 30, by which time, the administration says, construction contracts have to be in place if the project is to proceed. It’s hard to read the administration’s fevered stay application without thinking, “Here we go again.”
Adding to a recent compilation by Prof. Stephen Vladeck of the University of Texas School of Law for a forthcoming article in The Harvard Law Review, this is the 28th time, by my count, that the Trump administration has gone to the Supreme Court with an emergency application of some kind — a request for a stay or for the justices to skip the appeals court and grant direct review of a Federal District Court decision, as the court did in the census case. By contrast, the administration of President George W. Bush sought Supreme Court intervention of this sort only six times in eight years. For the Obama administration, the number of such requests was four in eight years.
Clearly, we are witnessing a change of historic proportions in the attitude and behavior of a presidential administration toward the Supreme Court. It bears close and skeptical watching. What do I mean by skeptical? The Trump administration doesn’t always get what it wants from the court, of course — but that’s not the point. Sometimes the point may be to lose, and to use the Supreme Court as a foil.
If that sounds too cynical, here’s an example of that kind of thinking. In the aftermath of the administration’s surrender on the citizenship question, the right-wing radio commentator Hugh Hewitt had a column in The Washington Post with the headline “How Trump Can Mitigate Damage From Folding on the Census.” The president, Mr. Hewitt wrote, “could — should, actually — change his mind and direct Barr to file an emergency motion for reconsideration with the Supreme Court.” Implicitly acknowledging that such an effort would surely fail, he continued: “Getting bounced again would be preferable to quitting and would fix responsibility for this fiasco” — in other words, put the blame on the Supreme Court for recalcitrance and not on the administration for an outrageous policy and a legally unreasonable demand.
It takes two to make a fiasco. That we narrowly avoided one fiasco is no insurance against the next one.
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