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
Enjoy this piece?
… then let us make a small request. The New Civil Rights Movement depends on readers like you to meet our ongoing expenses and continue producing quality progressive journalism. Three Silicon Valley giants consume 70 percent of all online advertising dollars, so we need your help to continue doing what we do.
NCRM is independent. You won’t find mainstream media bias here. From unflinching coverage of religious extremism, to spotlighting efforts to roll back our rights, NCRM continues to speak truth to power. America needs independent voices like NCRM to be sure no one is forgotten.
Every reader contribution, whatever the amount, makes a tremendous difference. Help ensure NCRM remains independent long into the future. Support progressive journalism with a one-time contribution to NCRM, or click here to become a subscriber. Thank you. Click here to donate by check.
Jim Jordan, a ‘Significant Player’ in Trump’s Efforts to Overturn Election Results, Running for Speaker of the House
House Judiciary Chairman Jim Jordan unexpectedly announced Wednesday morning he will run for Speaker of the House after several far-right Republicans ousted Kevin McCarthy Tuesday. Jordan, a far-right Republican who supported McCarthy, reportedly was “deeply involved” with, and a “significant player” in Donald Trump’s efforts to overturn the results of the 2020 presidential election.
Chairman Jordan, who created and also chairs the House Select Subcommittee on the Weaponization of the Federal Government, has used both platforms to further Republicans’ false claims on a wide range of issues.
Just two weeks ago, CNN reported, “Jordan made false claims in his opening remarks at a Wednesday hearing at which Jordan and other Republicans pressed Attorney General Merrick Garland about the Justice Department’s handling of investigations into former President Donald Trump and President Joe Biden’s son Hunter Biden.”
In his Wednesday “Dear Colleague” letter announcing his run for the Speakership (below), Jordan made clear his positions, while claiming the Republican House “majority has had success in the first nine months of the 118th Congress. We should be proud of what we have achieved together in these divided times.”
According to Legiscan, which tracks all legislation across the country at the state and federal level, the Republican House this year has had just eight bills signed into law.
One suspended the debt ceiling for a specified period of time. One, passed and signed into law on Saturday, avoided a shutdown of the federal government.
Others, for example, “require the Secretary of the Treasury to mint coins in commemoration of the 250th Anniversary of the United States Marine Corps,” and “establish a task force on improvements for notices to air missions.” One focused on “Trade between the United States of America and Taiwan.” One will “designate the clinic of the Department of Veterans Affairs in Indian River, Michigan, as the ‘Pfc. Justin T. Paton Department of Veterans Affairs Clinic,'” and one will “take certain land located in San Diego County, California, into trust for the benefit of the Pala Band of Mission Indians, and for other purposes.”
In his letter Jordan also railed against “Far-left progressive policies” which, he says, “are destroying our communities, our security, and our future,” followed by a list of regular GOP claims like “soaring crime across the country,” and “an administration with open-border policies.”
But if Jordan is elected, the nation would have as second in the line of succession to the presidency a Speaker who The New York Times has reported, “was deeply involved in President Donald J. Trump’s effort to challenge the 2020 election outcome.”
In May of last year, the Associated Press reported on Jordan’s efforts to help Trump overturn the election:
“Rioters who smashed their way into the U.S. Capitol on Jan. 6, 2021, succeeded — at least temporarily — in delaying the certification of Joe Biden’s election to the White House,” the AP wrote. “Hours before, Rep. Jim Jordan had been trying to achieve the same thing.”
On January 6 of this year, exactly two years after the 2021 insurrection, David Corn at Mother Jones warned: “House Speaker Fight Shows Election Deniers Who Tried to Overthrow Democracy Still Control GOP.”
That Speaker fight ultimately ended with Kevin McCarthy being handed the gavel after fifteen attempts, and ended Tuesday afternoon when eight of his own House Republicans, led by Matt Gaetz, essentially fired him.
“Trump coup accomplices Jim Jordan and Scott Perry have become two of the GOP’s biggest powerbrokers,” Corn wrote, adding: “Perry and Jordan stand out for their significant participation in Trump’s anti-constitutional and arguably criminal caper.”
As Corn and others have noted, the U.S. House Select Committee on the January 6 Attack deemed Jim Jordan “a significant player in President Trump’s efforts.”
Jordan, the January 6 Committee wrote, according to Mother Jones, “participated in numerous post-election meetings in which senior White House officials, Rudolph Giuliani, and others, discussed strategies for challenging the election, chief among them claims that the election had been tainted by fraud. On January 2, 2021, Representative Jordan led a conference call in which he, President Trump, and other Members of Congress discussed strategies for delaying the January 6th joint session. During that call, the group also discussed issuing social media posts encouraging President Trump’s supporters to ‘march to the Capitol’ on the 6th.”
In February of 2022 CNN reported, “Newly obtained records show Trump and Jim Jordan spoke at length on [the] morning of January 6.”
“Two sources who have reviewed the call records tell CNN that Trump spoke on the phone at the White House residence with Jordan for 10 minutes on the morning of January 6. That afternoon, Jordan took to the House floor to object to the certification of President Joe Biden’s Electoral College win, and pro-Trump supporters attacked the US Capitol.”
Jordan also refused to obey a subpoena lawfully-issued by the House January 6 Committee. He was unanimously referred to the House Ethics Committee in December of 2022, which Republicans gutted when the officially took the majority in January.
Read Jordan’s letter below or at this link.
— Rep. Jim Jordan (@Jim_Jordan) October 4, 2023
‘I’m Broke’: One Day Before Shutdown and With No Plan McCarthy Says He Has ‘Nothing’ in His ‘Back Pocket’
Just 30 hours before his own Republican conference likely will have succeeded in shutting down the federal government of the United States, Speaker of the House Kevin McCarthy candidly admitted to reporters he’s run out of ideas.
Earlier Friday in an “embarrassing failure,” 21 House Republicans killed legislation from their own party, a short-term continuing resolution, that would have kept the federal government open.
Later on Friday afternoon, swarmed by reporters, McCarthy was asked if he was going to tell them what his plans are. He sarcastically replied, “No, I’m going to keep it all a secret.”
When pressed, he said he would “keep working, and make sure we solve this problem.”
“What’s in your back pocket, Speaker?” another reporter asked, pressing him for an answer.
“Nothing right now. I’m broke,” he admitted, apparently referring to options and ideas to avoid a shutdown.
But another reporter asked Speaker McCarthy the main question: Would he partner with House Democratic Minority Leader Hakeem Jeffries to put the Senate’s bill before the House.
He refused to answer.
After Speaker Kevin McCarthy’s (R-CA) failed House vote to keep the federal government open…
Reporter: “What’s in your back pocket, Speaker?”
McCarthy: “Nothing right now. I’m broke.” pic.twitter.com/pB2SWhOSVr
— The Recount (@therecount) September 29, 2023
Just before 5 PM CNN’s Manu Raju reported on the ongoing House Republicans’ closed-door meeting with the Speaker, a meeting where the 21 Republicans who will likely be effectively responsible for the shutdown reportedly did not attend.
“McCarthy is telling [Republicans] now there aren’t many options to avoid a shutdown, according to sources in room. He says they can approve GOP’s stop-gap plan that failed, accept Senate plan, put a ‘clean’ stop-gap on floor to dare Democrats to block it — or shut down the government.”
He adds, U.S. Rep. Matt Gaetz (R-FL) largely responsible for the impending likely shutdown and the impending possible ouster of McCarthy said: “We will not pass a continuing resolution on terms that continue America’s decline.”
At midnight Saturday Republicans will likely have succeeded in furloughing 3.5 million million federal workers – two million of them service members in the U.S. Armed Forces – and countless contractors, while financially harming untold thousands of businesses that rely on income from all those workers to keep running – unless Speaker McCarthy puts a bipartisan continuing resolution approved by at least 75 U.S. Senators on the floor, legislation every House Democrat is likely to vote for.
Should he do so, many believe he will have also signed his own pink slip.
But whether or not the government shuts down, and whether or not McCarthy puts the Senate’s CR on the floor, according to The Washington Post the far right extremists in his party are already moving to oust him “as early as next week.”
The Biden campaign is making certain Americans realize the blame for the impending shutdown sits at McCarthy’s feet.
Here is Kevin McCarthy a few months ago praising the deal he made with President Biden to avert a government shutdown, which he is now reneging on pic.twitter.com/B4rVNzNXkZ
— Biden-Harris HQ (@BidenHQ) September 29, 2023
At 6:23 PM Friday evening, Punchbowl News’ Jake Sherman wrote on social media: “HOUSE REPUBLICANS HAVE NO PLAN TO KEEP GOVERNMENT OPEN.”
Watch the videos above or at this link.
‘See How Easy That Is to Say?’: GOP Mocked for ‘Weaponization’ of DOJ Claims as Democratic Senator Gets Indicted
The U.S. Dept. of Justice unsealed an indictment against U.S. Senator Bob Menendez late Friday morning, accusing the New Jersey Democratic lawmaker of bribery as prosecutors showed photos of gold bars and nearly half-a-million dollars in cash stuffed into a jacket that bears his name and the seal of the U.S. Senate.
Many on the left immediately demanded Senator Menendez resign, a demand he is refusing. He will step down as chairman of the Foreign Relations Committee, which Senate Democrats require when a chair is criminally charged.
It took little time for liberals to mock Republicans who have been claiming President Joe Biden and Democrats in general, along with the “deep state,” have “weaponized” the Dept. of Justice against conservatives, especially after Donald Trump’s four indictments on a total of 91 criminal felonies.
“Let me get this straight,” wrote journalist and progressive SiriusXM host Dean Obeidallah. “To the GOP, when DOJ indicts President Biden’s son and a senior Democratic US Senator that is great. But when DOJ indicts Donald Trump for attempting a coup and for 32 counts of Espionage that is DOJ’s ‘weaponization’ of criminal justice?!”
“This is the second time that Sen. Bob Menendez has been indicted for corruption. He needs to resign and allow Gov. Murphy to fill that vacancy with someone who does right by the people of New Jersey,” wrote former Human Rights Campaign press secretary Charlotte Clymer. “See how easy that is to say, GOP?”
Journalist, author, and former Clinton White House aide Keith Boykin posted video of the prosecutor announcing the indictment.
US Attorney Damian Williams shows photos of the Mercedes Benz, gold bars, and cash the government alleges Senator Robert Menendez received in bribes. pic.twitter.com/h4hYYwzKVQ
— Keith Boykin (@keithboykin) September 22, 2023
Boykin later sarcastically commented, “There goes Biden again weaponizing the Justice Department to prosecute political leaders in his own party.”
“President Joe Biden’s weaponized Department of Justice has now indicted Democratic Senator Bob Menendez and *checks notes* Joe Biden’s son,” observed veteran intelligence officer, activist, and social media personality Travis Akers.
Attorney and former Republican George Conway quickly responded, saying, “senile sleepy Joe is playing 65-dimensional chess again.”
“Menendez should resign. Today,” demanded historian and author Kevin M. Kruse.
“One of the nice things about rule of law is that truly believing in it ensures that you don’t end up as a partisan hypocrite,” observed The Atlantic’s Brian Klaas, an associate professor in global politics at University College London. “If Menendez is guilty, he should go to prison as anyone else would. (And it would be prudent to resign swiftly).”
Meanwhile, some used Friday’s indictment of Sen. Menendez to focus on other political figures.
Foreign policy, national security and political affairs analyst and commentator David Rothkopf, warned, “The Menendez case should have Jared [Kushner] and Clarence [Thomas] ordering extra strength Tums today.”
Rachel Bitecofer, the political strategist and analyst also appeared to point the finger at Justice Thomas and his wife, Ginni.
You know who else hid money from the IRS and ran his bribes through his wife?! pic.twitter.com/kWJuAPCtbJ
— Rachel Bitecofer 📈🔭🇺🇲🇺🇦 (@RachelBitecofer) September 22, 2023
- News2 days ago
‘Part of the Authoritarian Playbook’: Trump’s Courthouse Rant Slammed by Fascism Scholars
- News18 hours ago
Pelosi Delivers Brutal Response After McCarthy’s Acting Replacement Orders Her to Vacate Her Office Immediately
- RIGHT WING EXTREMISM2 days ago
‘Sodom and Gomorrah’: ND Republican Unleashes Anti-LGBTQ Christian Nationalist Rant Calling for ‘Christ Is King’ Laws
- News1 day ago
Trump Has Now ‘Crossed the Line Into Criminal Threats’: Top Legal Scholar
- News1 day ago
‘Fool or a Liar’: GOP Knives Out for ‘A–hole’ Matt Gaetz as Vote to Oust McCarthy Appears Likely to Succeed
- News7 hours ago
Pelosi Strikes Back After New House GOP Leadership, in Act of ‘Revenge’ Immediately Targets Top Democrats
- News2 days ago
Gaetz Needs Just Five Republicans to Oust McCarthy – He Already Has Three
- News20 hours ago
‘Radical Left Marxists’: Trump Launches Attack Hours After Judge Imposes Gag Order