There are times here in Year Three of the Trump presidency when I feel like I’m trapped in a nightmarish loop. From Trump’s travel ban to his national-emergency declaration, similar patterns play out over and over again: The Constitution of the United States grants Congress a specific, important power, Congress delegates that power to the president, the president uses it in a controversial and contentious manner, and — thanks to Congress’s original delegation — there is no effective legal mechanism for reining him in.
Moreover, because many members of the media don’t understand the proper role of the judiciary (or the law), they blame the Supreme Court when it refuses to stop Trump. They claim that the judiciary is “too deferential” to the president. This is wrong. The judiciary is properly deferential to Congress. The court is ratifying congressional intent.
Yesterday, the Supreme Court heard oral arguments in Department of Commerce v. New York, a case challenging the Trump administration’s decision to add a citizenship question to the 2020 census. The pattern fits to near-perfection:
1. Article I, Section 2 of the Constitution requires an “actual Enumeration” — the census — every ten years, and mandates that it be conducted “in such Manner as [Congress] shall by Law direct.” In plain English, Congress is in charge of the census.
2. Congress passes a law that grants an enormous amount of discretion to the Secretary of Commerce. Here’s the key, operative provision (13 USC §141):
The Secretary shall, in the year 1980 and every 10 years thereafter, take a decennial census of population as of the first day of April of such year, which date shall be known as the “decennial census date”, in such form and content as he may determine, including the use of sampling procedures and special surveys. In connection with any such census, the Secretary is authorized to obtain such other census information as necessary. [Emphasis added.]
(Notably, Congress does maintain some oversight in the bargain, imposing modest statutory requirements of secretarial discretion and mandating the secretary submit to Congress the subjects and questions included in the census.)
3. The Trump administration decides to restore a citizenship question to the census, an act that critics claim will decrease the response rate and perhaps affect the apportionment of the House of Representatives (by undercounting resident non-citizens) and — by extension — the allocation of electors in presidential elections. Objecting states sue to block the question.
And that pretty much brings us up to date: We’re locked in a version of the same fight that played out over the travel ban and is playing out over the national emergency (the Constitution doesn’t give Congress the power to declare national emergencies, but Congress did leave the definition of an emergency to the president’s discretion), only this time the citizenship question is at issue.
It’s in moments like this when the contrast between progressive and conservative approaches to jurisprudence can grow most stark. The progressive looks at the pattern above and demands that the Court fix the problem. The conservative looks at that same pattern and says, “If you don’t like the law, change it.”
So it went in yesterday’s oral arguments. With one very notable exception I’ll get to in a moment, the questioning by the progressive justices was more reminiscent of a congressional hearing, with the justices demanding a full explanation of the commerce secretary’s decision-making, including the justification for his departure from the recommendations of lower-ranked officials. The discourse with the conservative justices, by contrast, focused on the applicable standard of review and on Congress’s role. Justice Kavanaugh asked why Congress hadn’t prohibited asking the citizenship question in the same way that it had prohibited asking about religion. Chief Justice Roberts aggressively questioned the assertion that Congress had been denied necessary information to conduct oversight. But interestingly — remember that exception I mentioned? — both of them were following up on a penetrating question from Ruth Bader Ginsburg:
Congress has the primary control over what the census will be, not the executive, and Congress has been alerted to this citizenship question for some time, and it has done nothing about it. So one question is who should decide? Congress is silent. Should the Court then step in?
The answer here is no, it should not. Congress granted the executive discretion. Congress imposed a reporting requirement on the executive that grants Congress ample opportunity to assert its will.
As for the applicable standard of review, to the extent that the addition to the census form is even reviewable it must be reviewed under the most lenient possible standard: The Court must merely ask whether the administration was “arbitrary and capricious.” There is a veritable ocean of case law establishing the extreme lenience of arbitrary-and-capricious review. In this case the very long history of a citizenship question in the census — one was in the short-form census until 1950 and in the long form until 2000 — helps demonstrate that its use is neither “arbitrary” nor “capricious.”
We’re reaching a wearying point where commentators claim that virtually every single important case represents a test of the “politicization” of the Roberts Court, where the Court’s very “legitimacy” is at stake. In reality, the judicial philosophies of the Court’s two principal blocs diverge rather sharply, and most of the justices are rather consistent in the application of those philosophies. They’re not simply sticking their fingers in the air and measuring the political winds.
If a majority of the Roberts Court votes to uphold the citizenship question, it won’t be deferring to the president, but to Congress — the branch of government granted control of the “enumeration” in Article I, Section 2. When Congress delegates its power, it’s not the Supreme Court’s job to correct its alleged errors. The Trump administration should prevail here.
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