The legacy of Supreme Court Chief Justice John Roberts is a legacy of abject shame. Today the Supreme Court ruled 5-4 to send the issue of a citizenship question on the 2020 Census back to the Commerce Department. The justices did not decide the question was unconstitutional, quite the opposite, they indicated the question was entirely up to the Dept. of Commerce, but disputed the motive behind the Commerce dept. position.
The court holds that addition of question about citizenship to 2020 census does not violate Constitution’s enumerations clause or the Census Act, but that district court was warranted in remanding case to Department of Commerce to provide a non-pretextual explanation for adding the question.
The majority of the Court, with Roberts concurring, punted the issue back to Commerce by noting esoteric concerns about the motives behind the administrative procedure for adding the question. In essence, Secretary Wilbur Ross can add the question, but his current motive for adding the question was rebuked. Yes, this is ridiculous. Hence, the punt.
Here’s the SCOTUS Ruling:
Amy Howe has a good summation – FULL HERE:
“The evidence showed,” Roberts wrote, that Ross “was determined to reinstate a citizenship question from the time he entered office; instructed his staff to make it happen; waited while Commerce officials explored whether another agency would request census-based citizenship data; subsequently contacted the Attorney General himself to ask if DOJ would make the request; and adopted the Voting Rights Act rationale late in the process.”
Roberts acknowledged that courts should be “deferential” when reviewing an agency’s action, but he countered – citing Judge Henry Friendly, for whom he clerked on the U.S. Court of Appeals for the 2nd Circuit – that “we are not required to exhibit a naiveté from which ordinary citizens are free.” And here, when “the evidence tells a story that does not match the explanation the Secretary gave for his decision,” judicial review calls for “something better than the explanation offered for the action taken in this case.” “In these unusual circumstances,” Roberts concluded, the district court was therefore correct to send the case back to the Department of Commerce for it to provide a better explanation. (read more)
President Trump responded with a few tweets, noting how ridiculous the ruling was – And Trump is entirely correct:
Common sense would tell you, if there’s no constitutional issue with adding the citizenship question to the 2020 Census, then the issue of the Commerce Department motive behind the question is moot. It is constitutionally permissible to ask the question, meaning it is legal, and therefore FULL STOP.
Commerce Secretary Wilbur Ross can have any motive for adding the question, the court only disagreed with the context of the current motive saying there was a disconnect in the commerce department reasoning.
To me it looks like Chief Justice Roberts wanted to split the baby: yes, the question is constitutional and therefore legally permissible; however, the court will block the actual implementation by running out the clock based on a repudiation of irrelevant motive.
As to why Justice Roberts is a manipulative political weasel within the High Court, consider this:
In the Obamacare decision Roberts dismissed the motive issue where the government claimed the originating legislation for the healthcare mandate was a “Fee” not a tax; and Roberts manufactured the mandate argument into a “Tax” to support the mandate. In essence Roberts completely ignored the motive of the government lying about the architecture of the Obamacare payment mechanism in order for the court to support the unconstitutional mandate.
In Obamacare, the government motive was irrelevant to Roberts, so long as his court could re-write the architecture (an unconstitutional ‘fee’ became a constitutional ‘tax’) to grant constitutionality for the unconstitutional foundation of Obamacare.
However, in the Census citizenship question… government motives are now, apparently, everything that matters. In a reverse of his prior Obamacare logic, Roberts is using the motive of the government to thwart a completely constitutional administrative procedure.
See the weasel?
In the previous case Roberts ignored motive so that the court could turn an unconstitutional law into a constitutional court decision. In this case Roberts demands motive to turn a constitutional regulation into a court decision to block implementation.
I’ll bet this jerk is a member of Lawfare.