Connect with us

COMMENTARY

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

Published

on

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

Continue Reading
Click to comment
 
 

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.

COMMENTARY

Trump Mocked for Melting Down Over Gen. Colin Powell Endorsing Biden: ‘Cadet Bone Spurs Says What?’

Published

on

As might be expected, Donald Trump did not care for the comments made by former Bush Secretary of State Colin Powell on CNN Sunday morning — including his endorsement of Joe Biden as the next president of the United States, so the president lashed out on Twitter.

With Powell calling out the president for his treatment of Gold Star families and accusing the president of being a “liar,” Trump tweeted back, ”Colin Powell, a real stiff who was very responsible for getting us into the disastrous Middle East Wars, just announced he will be voting for another stiff, Sleepy Joe Biden. Didn’t Powell say that Iraq had ‘weapons of mass destruction?’ They didn’t, but off we went to WAR!

That received quite a bit of pushback from commenters with one bluntly stating, “You couldn’t shine Powell’s shoes.

You can see some other responses below:

Continue Reading

COMMENTARY

Trump Blames Obama for Iran Attack Then Takes Credit for Obama’s Accomplishments in Off-the-Rails Address to the Nation

Published

on

After three years there were likely few Americans hoping for some form of comfort from President Donald Trump’s address to the nation Wednesday in the wake of Tuesday night’s attack by Iran on air bases in Iraq that host thousands of U.S. Military troops. And President Trump, true to form, did not offer any.

The President descended as if from heaven (photo above) onto a stage filled with his military generals and advisors,

Vice President Mike Pence, Secretary of State Mike Pompeo, and Secretary of Defense Mark Esper. A clear attempt to show strength which the administration apparently felt the Commander-in-Chief could not summon if he appeared on camera alone. A sad statement.

“As long as I’m president of the United States Iran will never be allowed to have a nuclear weapon,” Trump, out of breath, declared as he walked up to the podium, flanked by his men in uniform. He then said: “Good morning.”

President Trump was expected to give Americans hope and comfort, and a clear indication that they are safe from attack.

Instead, he tried to show strength through military might – with no suggestion diplomacy might be a better route.

And he lied.

A lot.

“The missiles fired last night at us and our allies were paid for with the funds made available by the last administration,” Trump claimed, blaming President Barack Obama in a speech watched around the world.

“Iran’s hostilities substantially increased after the foolish Iran nuclear deal was signed in 2013,” Trump claimed. (It was actually 2015.)

He added, “they were given $150 billion, not to mention $1.8 billion in cash.  Instead of saying ‘thank you’ to the United States, they chanted ‘death to America.’  In fact, they chanted ‘death to America’ the day the agreement was signed.”

Those billions belonged to Iran, and reportedly were less than the numbers Trump quoted. They were Iranian funds frozen which had been paid to the U.S. for arms never delivered. It is a frequent trump lie he tells at rallies over and over.

“Then, Iran went on a terror spree, funded by the money from the deal, and created hell in Yemen, Syria, Lebanon, Afghanistan, and Iraq,” Trump claimed  in his address to the nation – and to the world. “The missiles fired last night at us and our allies were paid for with the funds made available by the last administration.  The regime also greatly tightened the reins on their own country, even recently killing 1,500 people at the many protests that are taking place all throughout Iran.”

“The very defective JCPOA [the “Iran deal”] expires shortly anyway,” Trump said. That’s just false – another lie Trump often tells. Various parts expire between 2025 and 2030.

He claimed the JCPOA “gives Iran a clear and quick path to nuclear breakout,” which again is false.

After falsely blaming Obama for Iran’s attack he went on to take credit for Obama paving to road to energy independence.

“Over the last three years, under my leadership, our economy is stronger than ever before and America has achieved energy independence.  These historic accomplishments changed our strategic priorities.  These are accomplishments that nobody thought were possible.”

Again, false.

Here’s CNN’s Keith Boykin with graphs showing just how false Trump’s energy independence remarks were:

 

Continue Reading

COMMENTARY

Legal Expert Makes the Case for Trump to Resign — but Why Have So Few Others Demanded He Step Down?

Published

on

In a new op-ed for CNN, constitutional law professor F. Michael Higginbotham argued Friday that President Donald Trump should resign from office.

Higginbotham argued in the op-ed that President Richard Nixon’s resignation in the face of his own impeachment could be seen to represent, despite his grave abuses, “an act of patriotism.”

Nixon “protected not only his own historical legacy but also the country he had taken an oath to serve,” Higginbotham wrote. “Donald Trump should follow suit.”

He continued:

Trump should resign so the country can begin the process of healing. The divisions in the country today are even more corrosive than they were in 1974. That’s why it’s even more important that Trump emulate the best of Richard Nixon, who, in a rare moment of grace, understood he could only weaken the nation he led by focusing solely on himself, and chose the better path.

In President Trump’s acceptance speech of the Republican nomination at the Republican National Convention in 2016, he told the nation, “Nobody knows the system better than me, which is why I alone can fix it.” While many mocked the hubris behind that claim, at this moment of national danger it is undoubtedly true: Trump alone can spare the nation the painful ordeal of an impeachment trial in the Senate.

While Trump is written about extensively every single day, such calls are relatively few. For all the tumult, investigation, and fierce partisanship Trump’s presidency has produced, it’s produced surprisingly sparse demands for his resignation. Even as Trump has been impeached by the House of Representatives, and top newspapershave called for the president’s removal, the other option — the only way a president has actually been ousted from office via the impeachment process — remains woefully under-discussed. And though Democrats have occasionally called for the resignation of administration officials such as Attorney General Bill Barr and Education Secretary Betsy DeVos, they seem hesitant to take the same step for the president himself. Instead, they often call on him to stop creating division and “lead” the country.

But “leading the country” is exactly what Trump has repeatedly proven himself incapable of doing.

What’s odd about the relative dearth of calls for is that Trump’s conduct clearly merits it. I’ve argued that calling for Trump’s resignation was the Democrats’ best move since they took the House of Representatives. And if, as many do, you think it’s appropriate for Trump to be impeached or removed, you should probably also think that it would be best if he just stepped down without all the conflict. In fact, it would be reasonable to argue that Trump should resign, but that an ultimately doomed impeachment process is too disruptive for the country. So in theory, there should be more support for Trump’s resignation than there is for his removal.

So why aren’t we deluged with calls for Trump’s resignation? CNN host Chris Cuomo’s response to the Higginbotham piece probably sums up the explanation:

Everyone assumes — almost certainly correctly — that Trump will never agree to resign the presidency. He hates admitting failure, he loves the adulation the office provides, and he fears the potential legal consequences of no longer being protected from prosecution. Nixon was a monster with a devoted base of support, but he realized eventually that it was time to throw in the towel. It’s nearly impossible to imagine a plausible scenario in which Trump does the same — and not just because the Republican Party seems even more devoted to the current president than it was to Nixon. He won’t even admit that his phone call with Ukrainian President Volodymyr Zelensky was far from “perfect,” even though this admission could have helped him.

But the fact that Trump would almost never agree to resign doesn’t mean we should ignore the obvious fact that he should. Ignoring this option lets Trump off the hook for his own responsibilities, and it lowers the bar for the presidential standard of behavior.

Many Republicans have spoken out against impeachment by citing the fact that it will be divisive for the country and create more animosity or tension. By calling for resignation as a potential alternative to impeachment, Trump’s critics could point out that any resulting division from impeachment proceedings is at least as much the fault of the president. Democrats could argue that Trump’s behavior forced them to pursue impeachment, but if he were gracious and cared about the country, he could bring it to a peaceful end.

This reframes the discourse around Trump’s impeachment in a useful way, especially when pressed against Republicans who can’t bring themselves to defend the president’s conduct on the merits. And it exposes and dispenses with the implicit idea that Democrats are the only actors responsible for preserving constitutional government; that obligation falls just as heavily on the shoulders of Trump and the Republicans.

 

Continue Reading

Trending

Copyright © 2020 AlterNet Media.