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COMMENTARY

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

‘We’re in Trouble’: Steve Schmidt Issues Dire Warning About Changed GOP After January 6th Insurrection

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Appearing on MSNBC’s the 11th Hour with host Brian Williams, former GOP campaign consultant Steve Schmidt warned that Democrats need to accept that the Republican Party has changed drastically after four years of Donald Trump and the Jan 6th riot — and failure to recognize that simple fact puts the entire country at risk.

Using one of Schmidt’s tweets where he called Trump’s “truth” a “hideous deception” as a jumping-off point, the former Republican warned, “We’re in trouble.”

“Objectively, since the insurrection on Jan 6th, the Republican Party is far more radical,” Schmidt began. “Far more committed to the lie that Trump has told, fully committed to the authoritarian movement.”

“Should the events repeat themselves, the Republican Party is in a much different place than it was this past election with regard to being prepared to subvert the legal and lawful results,” he continued.

“The Democrats have done nothing since coming into office,” he added. “They have done nothing to prevent any of the abuses we have seen, done nothing to harden any of the infrastructures”

He later added, “This is a serious moment.”

Watch below:

 

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COMMENTARY

Republicans Just Filibustered a Critical Voting Rights Bill. Here’s Why Everyone Is Blaming Joe Manchin.

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Minutes ago Senate Republicans filibustered critical voting rights legislation – actually, filibustered debate on voting rights legislation. They refused to even allow debate on protecting the most important, most critical element of a democracy: the right and the ability to vote.

“If there is anything worthy of the Senate’s attention, if there’s any issue that merits debate on this floor, it is protecting our democracy from the forces that are trying to unravel it from the inside out,” Senate Democratic Majority Leader Chuck Schumer said after Republicans blocked debate on the bill.

While Republicans absolutely should be and are being held accountable, many on social media are blaming Senator Joe Manchin (D-WV) for the failure to pass the Freedom to Vote Act.

Why?

Back in May Sen. Manchin insisted he could get Republicans to come to the table, to act in good faith, to do the right thing when it counted.

He insisted the filibuster had to be protected at all costs, and he’s steadfastly refused to budge on eliminating it. Even as Republicans in state after state after state enact anti-democratic legislation designed to make it harder and harder for people, especially minorities, to vote.

In short, he failed.

Not a single Republican crossed the aisle – much less ten to get the necessary 60 votes – not even to allow debate on protecting voting rights.

And now many are blaming Manchin.

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COMMENTARY

‘Pig’ Donald Trump Slammed After Attacking Colin Powell for Being Treated ‘So Beautifully’ in Death

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Donald Trump Tuesday morning attacked former U.S. Secretary of State and Joint Chiefs Chairman Colin Powell, 24 hours after his death from COVID complications, and complained in typical Trump sarcasm how it was “wonderful” to see Powell being “treated in death so beautifully by the Fake News Media.”

The former president added that he hopes “that happens to me someday.”

He’s now being highly criticized for his remarks.

In a statement the former president called General Powell a “classic RINO,” who was always the “first to attack other Republicans.” Powell endorsed former U.S. Secretary of State Hillary Clinton over Trump in the 2016 presidential race, and former Vice President Joe Biden in 2020.

Trump also accused Powell, who served under Presidents Reagan, Bush 41, Clinton, and Bush 43, of making “big mistakes on Iraq,” including his infamous statement before the United Nations about weapons of mass destruction, which Powell later acknowledged  was wrong.

After attacking Powell, Trump concluded, “He made plenty of mistakes, but anyway, may he rest in peace!”

Many are expressing outrage:

 

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