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Chief Justice John Roberts Isn’t Our Savior From Trump — He’s the President’s Chief Enabler

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When the Justice Department and the Commerce Department announced on Tuesday that the case was closed on the Census’ citizenship question and the query would be left off the 2020 survey, I was immediately confused. Though Supreme Court Chief Justice John Roberts had written a majority opinion for last week ruling that the Commerce Department’s fake justification for the question warranted blocking the agency from including it, he left an opening for the Trump administration to push forward with the effort as long as it provided another excuse.

And right on cue, President Donald Trump tweeted Wednesday that his administration wasn’t dropping the question after all, and the Justice Department announced that it is exploring paths to keep the query on the Census. Thursday morning, Axios reported that the president is considering an executive order directing the Commerce Department to include the question after all.

Some are arguing that this shows Trump is preparing to disobey the Supreme Court. Former federal prosecutor and legal analyst Joyce Vance said that by including the question, Trump could be committing an “unconstitutional” act.

But unfortunately, this does not appear to be the case. Roberts’ ruling was particularly narrow, and he appears to have given Trump plenty of room to wiggle out of it.

When Roberts affirmed a lower court’s decision to block the citizenship question and remand the issue back to the agency, he did so for one reason: its justification for the questions’ inclusion was obviously false. Commerce Secretary Wilbur Ross had claimed that he included the question based on the Justice Department’s view that it needed the answer to enforce the Voting Rights Act. The public record contradicted these claims, and Robert concluded that the reason the administration provided “seems to have been contrived.”

Many hailed this as a bold move for the chief justice, essentially calling out the administration for lying. However, saying that the Trump administration is lying is no more praiseworthy that accurately describing the present weather. Of course the president and his officials are lying. It’s what they do. Not calling it out would be a derogation of duty.

And Roberts made it quite clear that it was only because the administration had been so brazen in its dishonesty that the Census question could be blocked:

Unlike a typical case in which an agency may have both stated and unstated reasons for a decision, here the VRA enforcement rationale—the sole stated reason—seems to have been contrived. The reasoned explanation requirement of administrative law is meant to ensure that agencies offer genuine justifications for important decisions, reasons that can be scrutinized by courts and the interested public. The explanation provided here was more of a distraction. In these unusual circumstances, the District Court was warranted in remanding to the agency.

This makes quite clear that Roberts is leaving Trump a loophole. It’s “typical,” he said, that an agency may conceal some of its reasons for taking a certain enforcement step. Since the VRA explanation was the sole reason given for the citizenship question, and yet it was “more of a distraction” than a believable claim, Roberts upheld the lower court’s ruling.

But this leaves open the possibility that the Trump administration could come up with another, non-fake reason for including the citizenship question, and that should suffice to allay Roberts’ doubts. It doesn’t matter if the administration has other, “unstated” reasons for including the question, because Roberts said this is “typical.” All it needs is a non-bogus justification in addition to whatever the true reason was that the question was initially proposed.

Perhaps it seems that, since the administration was obviously trying to hide its genuine reason to include the question — which was almost certainly to discriminate against Hispanic people and disadvantage Democrats — any additional justification that Trump officials might provide would also clearly be a pretext. But this isn’t so. To satisfy Roberts, the only thing Trump officials should have to do is imagine some possible benefit to including the citizenship question on the Census. It’s not clear the administration even has to actually think this supposed benefit is, in fact, a benefit — the explanation would only have to not be obviously false. That would remove the “unusual circumstances” that Roberts said merited blocking the citizenship question.

To be clear, I’m not defending Trump or Roberts. The question was clearly designed for discriminatory and illegitimate purposes. But as Joshua Matz argued at the law blog Take Care, Roberts seemed to dismiss many of the good reasons he might have endorsed for blocking the citizenship question:

The result is a Supreme Court opinion that eliminates nearly every constitutional, statutory, and regulatory objection that has been raised against the citizenship question, and that describes the decision to include this question as reasonable in light of empirical uncertainty about the best way to calculate the total number of citizens.

Ultimately, the Chief’s only complaint is that Ross offered a rationale for this decision that—to borrow a phrase from Scalia—taxes the credulity of the credulous…

At bottom, then, the Chief’s objection concerns only the shamelessness of the administration’s bad faith. Before he dirties his hands upholding Ross’s decision, he has required Ross to clean things up a bit, thus ensuring that the citizenship question enjoys a patina of legitimacy when he finally okays it.

The Justice Department, it seemed, did not initially agree with my or Matz’s assessment of the ruling, because it concluded that the citizenship question was dead. But Trump seems likely to be proven right in the end, and he will probably get his way.

One reason the Justice Department may have been inclined to throw in the towel is that its own credibility was on the line. It argued multiple times before the court that the administration had a hard June 30, 2019 deadline before it had to begin printing the Census forms in order to comply with the legally mandated deadline. Trying to find a new justification for including the citizenship question, and having that justification vetted by the courts, could extend well past that deadline. Trump, however, doesn’t put much stock in his administration’s credibility.

And while the court won’t be happy about having been lied to on this matter, it’s hard to see how this could make a difference in the final decision of including the question. The Trump administration could always say it previously believed June 30 to be a hard deadline, but it found an alternative route by, say, printing an addendum to the Census forms that includes the citizenship question.

If Trump goes through with these shenanigans, as he seems intent on doing, he will have made a mockery of the judiciary. But Roberts will have let him. The chief justice has made clear that he intends on giving the Trump administration an excessive amount of leeway, as the decision to allow the Muslim ban to stay in effect first demonstrated.

Undoubtedly, Roberts doesn’t seem to like Trump very much. Last December, he took the rare step of appearing to respond directly to some of Trump’s claims when the chief justice declared that there are no “Obama judges or Trump judges.”

And yet Roberts was elevated to the court for a purpose, and that purpose was the protection and promotion of the conservative movement. That means empowering the executive branch and letting Republican presidents get away with abusing their office. By directly lying to the court and the American people, the Trump administration went farther than even Roberts was willing to bear in this instance. Not so far, though, that Roberts wasn’t willing to let Trump have a do-over.

He’s willing, in other words to be Trump’s enabler, even if he doesn’t like him.

It’s possible Roberts will surprise me and block another attempt by Trump to include the question. I seriously doubt it, but Roberts does have the capacity to surprise. Nevertheless, the chief justice gave Trump the window in his latest ruling to push the envelope even further, to try to see what he could get away with. By writing a more decisive ruling, he could have stopped this nonsense with the citizenship question in its tracks. Instead, he allowed Trump to drag out the fight.

 

Image: Screenshot via YouTube

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COMMENTARY

‘I’m Not a Bigot, I Love People’: Mayor Says New LGBTQ-Inclusive Education Law ‘Is Going to Hurt People’

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Why is this bigoted anti-LGBTQ mayor still allowed to teach in public schools?

Barnegat,  New Jersey’s Republican mayor is once again attacking a new state law that requires schools to include in their curriculums the contributions made by LGBTQ people. Alfonso Cirulli gained condemnation nationwide after delivering a lengthy, bigoted rant in August during a township committee meeting. And now he’s back for another round.

Mayor Cirulli, who worked for years as a teacher and an administrator, is still allowed in schools, and is still teaching, according to a just-published article by NJ.com.

“I’m not a bigot, I love people,” Cirulli said in his recent interview.

That claim is false, given he called the LGBTQ community “an affront to almighty God” during that highly-publicized summer meeting.

“Sexual preference is a mindset,” Cirulli also claimed. “Don’t confuse this with racial or ethnic discrimination. There is no comparison.”

In his latest interview Cirulli falsely claims teaching students about the contributions made by members of the LGBTQ community “is going to hurt people,” and “is going to cause more problems than they say it’s going to help.”

“I’m worried about kids,” Cirulli claimed. “You’re taking young kids and you start telling them, ‘If you want to be a girl, you can be a girl, if you want to be a guy, you can be a guy.’ And you’re giving them an identity crisis.”

That’s just plain false.

There’s no video of Cirulli’s remarks this time, but during his unhinged August rant he said the “LGBTQ movement is out to crush anybody or any faith that doesn’t embrace their chosen lifestyle,” which is also false.

“For people of faith, make no mistake that this political movement is an affront to almighty God,” Cirulli said,  “with the intent of completely trying to completely eradicate God’s law and the foundation that this nation was built on.”

He also called the federal Equality Act “dangerous.”

NJ.com reports Cirulli is “a former assistant principal at Pinelands Regional High School who still teaches woodshop and other classes in the district.”

It’s unclear why, given his very public remarks that may have impacted the very students he teaches, he is still allowed to do so.

 

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COMMENTARY

DOJ Sticks Its Nose in Lawsuit Against Archdiocese That Fired Gay Teacher – And Urges Court to Rule Against Him

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Bill Barr’s Dept. of Justice is spreading its tentacles far and wide. While it has every legal right to do so, most might not expect the federal government to weigh in on a case filed in a state court, even a state superior court. And yet, it has.

The United States Attorney’s Office for the Southern District of Indiana and the United States Department of Justice Civil Rights Division have filed a “Statement of Interest” telling the Indiana Superior Court it should rule against a teacher who is suing the Roman Catholic Archdiocese of Indianapolis for firing him because he is gay and married to a man.

“The Archdiocese determined that, consistent with its interpretation of Church teachings, a school within its diocesan boundaries cannot identify as Catholic and simultaneously employ a teacher in a public, same-sex marriage,” the DOJ’s statement reads. “Many may lament the Archdiocese’s determination. But the First Amendment forbids this Court from interfering with the Archdiocese’s right to expressive association, and from second-guessing the Archdiocese’s interpretation and application of Catholic law. For these reasons, this action must be dismissed.”

The question many should have is why this case? And why did the DOJ feel the need to weigh in at all?

It seems the DOJ may be laying groundwork.

Attorney Mark Joseph Stern, who writes at Slate, offered this disturbing analysis:

Duhaime’s Law Dictionary defines “expressive association” as a “group that engages in some form of public or private expression,” and pulls this quote from a legal case:

“The courts have long understood as implicit in the right to engage in activities protected by the First Amendment a corresponding right to associate with others in pursuit of a wide variety of political, social, economic, educational, religious, and cultural ends.”

The DOJ’s “Statement of Interest” uses the term “expressive association” twelve times.

Imagine where they might be going.

Forewarned is fair-warned.

 

Image: Shutterstock

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COMMENTARY

‘Absolute Fealty at All Times’: New Report Details the Degrading Demands Trump Places on His Aides

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In a report for the Washington Post on Thursday, reporters Ashley Parker and Philip Rucker outlined the grueling and “Kafkaesque” standards President Donald Trump places demands of his aides — standards that now-former National Security Adviser John Bolton failed to live up to.

“He tolerates a modicum of dissent, so long as it remains private; expects advisers to fall in line and defend his decisions; and demands absolute fealty at all times,” they wrote.

One anonymous source for the piece explained how his demanding nature is also, at times, excruciatingly paradoxical:

“There is no person that is part of the daily Trump decision-making process that can survive long term,” said a former senior administration official who spoke on the condition of anonymity to offer a candid assessment. “The president doesn’t like people to get good press. He doesn’t like people to get bad press. Yet he expects everyone to be relevant and important and supportive at all times. Even if a person could do all those things, the president would grow tired of anyone in his immediate orbit.”

Anthony Scaramucci described the role of Trump’s staff in particularly degrading terms. In his view, Trump wants “catatonic loyalty” and for his people to act as props. Others told the Post that Trump likes to stage disagreements between his aides and then “play emperor” and decide the winner.

Dozens of Trump aides and appointees have fallen from his grace and been ousted from the administration for failing to play the dutiful role to perfection: former Secretary of State Rex Tillerson, former National Security Adviser H.R. McMaster, former Chief of Staff John Kelly, and former Homeland Security Secretary Kirstjen Nielsen, to name just a few.

Notably, Bolton wasn’t going to be a prop in this game. When Bolton entered the White House, it was clear to most observers — though apparently not Trump — that he was committed to enacting his vision of foreign policy, one that contrasted sharply with the president’s preferences. It seems Trump appreciated and tolerated Bolton at times, but Bolton’s goal was to manipulate the president in the end. Once even Trump realized that Bolton wasn’t just a tough-guy war-monger stage prop, but an ideologue using the president for his own purposes, he had to go.

The piece interestingly doesn’t mention the roles of Ivanka Trump and Jared Kushner, the president’s daughter and son-in-law, in the White House. They seem to defy the usual standards for Trump’s aides, and he clearly doesn’t view them as disposable, like a chief of staff or a national security adviser. Being family is different.

But the piece also doesn’t address some of the outlier aides in Trump’s orbit. Why have, for example, Kellyanne Conway and Stephen Miller stuck around so long? How did they avoid the fate of so many others — especially when they both have gotten their fair share of bad press?

Fundamentally, though, the account rings true for the vast majority of Trump’s people. For example, consider that, in the video that sparked the “Sharpiegate” story, Trump had the acting Secretary of Homeland Security Kevin McAleenan sitting off to the side, voiceless, acting like a prop and displaying the doctored weather map:

 

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