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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Garland’s ‘Beautiful Chess Move’ Praised as Judge Sets Expedited Schedule to Unseal Warrant
A federal judge has given Donald Trump until Friday at 3 PM ET to oppose the Dept. of Justice’s request to unseal the search warrant FBI agents used to enter Mar-a-Lago and confiscate possibly thousands of items including classified documents.
Many are cheering the Attorney General Merrick Garland who frequently has been the target of frustration on the left for appearing to not be acting expeditiously against Trump.
In what some have called a “beautiful chess move,” Attorney General Garland announced Thursday afternoon he has asked a federal judge to unseal the search warrant after Trump and his allies expressed outrage over the FBI’s Monday raid, and have been spreading agents planted evidence, a conspiracy theory that first appeared on social media but quickly made it to Fox News’ airwaves.
Many on the right have demanded Garland have the warrant unsealed.
Should Trump not oppose the unsealing the American people will likely be able to see what laws DOJ believes the former president violated.
Noted attorney Ken White on Twitter wrote: “By the way Trump could file something TODAY saying he doesn’t oppose unsealing the warrant and it would be public probably by tomorrow. Or he could just release his copy.”
The fact that the former president has not released his copy of the search warrant, which “is his right” as Garland noted Thursday, makes it more likely he will oppose DOJ’s motion to unseal.
One important note for those expecting an avalanche of information should the federal judge unseal the warrant.
“DOJ has asked to unseal the warrant and ‘Attachments A & B.’ Best I can tell from examples of recent federal search warrants, these attachments will describe the ‘property to be searched’ and the ‘particular items to be seized’ but will NOT include the affidavit of probable cause,” writes Harvard Law professor of criminal law and procedure Andrew Crespo.
“The government is not yet seeking to release what is known as the affidavit in support of the warrant,” The New York Times confirms, “a document that lays out all sorts of telling details about the larger investigation of Mr. Trump — chief among them the reasons prosecutors believed there was probable cause that evidence of a crime could be found at Mar-a-Lago.”
Many online are cheering Attorney General Garland’s decision to go head to head with Trump.
The Daily Beast’s Zachary Petrizzo writes, “merrick garland is out here playing 5d chess while trump & his team play checkers.”
USA Today opinion columnist Michael J. Stern summed up Garland’s action today:
“Merrick Garland to Trump: I’m going to let the world see the gobs of evidence we have that led to the search warrant…unless you object…in which case you will be signaling to the world that you have gobs to hide.”
This article has been updated with reporting from The New York Times.
‘It’s So Gross’: NY Times Blasted for Negative Reporting on Biden by ‘Blindered Horse-Race Analysts’
After President Joe Biden and Democrats in the House and Senate were closing an exceptional week of success after success on Saturday, pulling into a Senate vote that would transform the U.S. response to climate change, combat inflation, lower Medicare prescription drug prices and the federal deficit, and increase the energy supply, The New York Times published an article attacking the American president, depicting him as weak and ineffective, while speaking primarily, almost entirely, only to Republican pollsters, strategists, and politicians.
Critics, journalists, and even some New York Times readers are calling out the paper of record, and its top reporters.
“In Senate Battle, Democrats Defy Biden’s Low Standing (for Now)” was the title of the Saturday article that essentially was a megaphone for the MAGA crowd, published in the Times’ politics section.
The article’s subhead made clear what readers could expect: “’The billion-dollar question,’ as one Republican pollster put it, is whether Democratic candidates in crucial Senate races can continue to outpace the president’s unpopularity.”
“In a Senate split 50-50,” wrote the Times’ Shane Goldmacher and Maggie Haberman, “Democrats on the campaign trail and in Congress have zero margin for error as the party tries to navigate a hostile political environment defined chiefly by President Biden’s albatross-like approval ratings,”
Rather than describe historic legislation as productive for the American people, and literally, a massive undertaking that will have positive global effects, the Times reporters opted to frame the Inflation Reduction Act (IRA) as a partisan, political scheme.
“In Washington, Senate Democrats are racing to bolster their position, pressing for a vote as soon as Sunday on a sweeping legislative package that represents their last, best sales pitch before the midterms to stay in power.”
Dan Froomkin, editor of Press Watch, latched onto the Times article and reporters.
“The only context that matters to these blindered horse-race analysts is Biden’s approval rating. The lies, the conspiracy theories, the threat to democracy,” he noted, presumably referring to Trump, “are irrelevant.”
Soledad O’Brien, the well-known former CNN anchor who now is chair of the Starfish Media Group, which she founded, and host of “Matter of Fact with Soledad O’Brien,” and is a frequent critic of the media offered her thoughts:
“It’s so gross,” she responded.
“And it gets worse,” Froomkin added. “Look who they quote: Republican pollster, anonymous Republican strategists, dude who runs Republican Super PAC, Mitch McConnell, one Dem pollster, Republican strategist, Republican Senate candidate, Republican Senate candidate, Republican strategist…”
Indeed, Haberman and Goldmacher quote “Robert Blizzard, a Republican pollster,” “Republican strategists involved in Senate races, granted anonymity to speak candidly,” “Steven Law, who leads the main Senate Republican super PAC,” “Senator Mitch McConnell of Kentucky, the Republican leader,” “Geoff Garin, a Democratic pollster,” “Corry Bliss, a veteran Republican strategist,” Joe O’Dea, a GOP candidate, GOP Senate nominee Blake Masters, “Andy Surabian, a Republican strategist advising a super PAC supporting Mr. Masters,” and “Christina Freundlich, a Democratic consultant.”
That’s seven Republicans, an unknown number of unnamed anonymous GOP strategists, and two Democrats.
In a negative article about President Joe Biden, The New York Times didn’t include any quotes from President Joe Biden or the White House. Not even anonymous ones.
The Times almost entirely ignored Biden’s accomplishments from the past week chocked full of wins.
Here’s how Haberman and Goldmacher served up those facts:
“With a strong job report on Friday, long-stalled legislation moving and gas prices on the decline — albeit from record highs — it is possible that Mr. Biden’s support could tick upward.”
By contrast, on Sunday the Associated Press reported on Biden’s “legacy-defining wins,” including noting that a “summer lawmaking blitz has sent bipartisan bills addressing gun violence and boosting the nation’s high-tech manufacturing sector to Biden’s desk, and the president is now on the cusp of securing what he called the ‘final piece’ of his economic agenda with Senate passage of a Democrats-only climate and prescription drug deal once thought dead.”
That economic agenda is what the Times called “a sweeping legislative package that represents their last, best sales pitch before the midterms to stay in power.”
A CNN opinion piece Friday noted “Joe Biden sure is suddenly notching up an impressive string of victories. And they’re not minor. In fact, Biden is on a roll when it comes to both domestic and foreign policy.”
Over a week ago, NBC News’ senior national political reporter Sahil Kapur noted, “If this deal passes,” referring to the Inflation Reduction Act, which did pass on Sunday, “Biden will have inked wins on: Drug pricing, Climate/ACA $$, Higher taxes on corporations, $1.9T Covid rescue plan, $1.2T infrastructure law, New gun law, Chips/China bill, KBJ on SCOTUS, 73+ lower court judges, VAWA re-up, Postal reform.”
He adds: “This is not a trivial agenda.”
That list did not include all the wins Biden had last week before the IRA passed, including: 528,000 jobs added in July, unemployment at a 50-year low (3.5%), the killing of terrorist Ayman al-Zawahiri, CHIPS Act passage, PACT Act passage to help veterans affected by toxic burn pits, and gas prices dropping daily.
Meanwhile, others continued to blast the Times’ reporting.
“Hard to believe this kind of bad, ‘conventional wisdom’ reporting is still happening, where they’re saying Biden is ‘albatross’ around Dem candidates’ necks and it’s all…a mystery….” tweeted Michelangelo Signorile, a veteran journalist, SiriusXM Progress host, and writer of books and a Substack newsletter.
Some New York Times readers in the paper’s own comments section were equally critical.
“Times pundits fail to distinguish between ‘job approval’ polls versus the relative popularity of the two parties’ agendas,” wrote Baxter Jones. “Republican candidates have no agenda beyond tax cuts for their big contributors, banning all abortions, voter suppression, and abolishing Obamacare with no clue of how to replace it. Oh, and climate change denial.”
Another reader wrote: “Nothing about abortion or extremism? No Democrats to quote? I hope there will be a follow up from a Democratic perspective.”
“Wow!” wrote yet another reader. “I can’t believe the premise of this article is so simplistic. Nothing is happening in this election other than how popular Joe Biden is. No mention of the anti-choice crowd and the shellacking they took in Kansas. Or how voter registration has vastly increased across the country since the Dobbs decision. (And one of the authors is a woman, presumably of liberal bent.)”
“No mention of the fact that the recent legislation passed (and passing, as I write this on Saturday night) by the Democrats is wildly popular with wide swaths of the populace, and even more popular with narrow swaths such as veterans,” they continued.
“If all you have to do to control the congress is lambast the incumbent president, then we should start doing that the moment another Republican gets into the White House. Whence all this ‘hate Joe Biden,’ stuff. Populism, or right-wing radio with nothing else to sell? I hope most Americans are smarter than that.”
TikTok Influencer Ignites Backlash After Posting Homophobic and Racist Rant Attacking Home Depot Workers
Amanda Marie, an influencer with around 14,000 followers on TikTok, is getting some backlash after she posting a video describing how she harassed a Home Depot employee while using homophobic language and telling him to “go back to your country,” Boing Boing reports.
The video shows Marie telling a Black employee that she’s going to get him fired. She then goes to her car and recounts the incident from her perspective, saying, “I said, ‘I’m not leaving.’ … I then turned around and said, ‘If you’re going to be rude, go back to your country. Go back to your country!’ ‘Cause he wasn’t from here.”
“So I turn around, and I say, ‘Go back to your motherf***ing country and learn some f***ing manners before you come here,'” she said.
She also tried to claim the homophobic slur “fag,” which she allegedly used against one of the employees, is not seen as an offensive term back in New York.
As Boing Boing points out, she deleted the video from her various platforms after the backlash.
Watch the video below.
And she was proud enough to post this herself? pic.twitter.com/3jH572ymKY
— 🥀_Imposter_🕸️ (@Imposter_Edits) August 1, 2022
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