How Many Divisions Does Chief Justice Roberts Have?
When Obama didn’t like a court order, he ignored it.
In fact , he exceeded the constitutional bounds of his office at least 10 times, notes Ilya Shapiro. He did it in intervening in Libya without even notifying Congress; in subverting creditors’ rights in the Chrysler bailout; in his administration’s implementation of ObamaCare; In the political profiling by the IRS; in illegally appointing three members of the NLRB and the head of the Consumer Financial Protection Board when Congress was not in recess; in directing “the Department of Homeland Security to issue work and residence permits” to the so-called Dreamers (Deferred Action to Childhood Arrivals); in assaulting free speech and due process on college campuses; in creating and implementing his clean power plan; in his overly expansive clean water plan to cover water which is not navigable; in adopting a net neutrality rule; in implementing a cap-and-trade rule.
After the 2014 midterms, the president decided that he had been wrong 22 times in saying he couldn’t give temporary legal status to illegal immigrants. The administration engineered this Deferred Action for Parents of Americans in the wake of Congress’ rejection of the same policies, in violation of the Administrative Procedure Act, immigration law, and the Constitution’s Take Care Clause.
By contrast, although hampered at every turn by Obama-appointed district court judges assuming themselves to be commanders-in-chief and issuing nationwide injunctions against presidential actions on spurious grounds, this administration has continued to follow the accepted path of appealing those rulings, despite the delays that entails.
Oddly, Chief Justice Roberts took issue with the notion that these usurpers are Obama judges, claiming the federal judiciary is politically neutral. I say oddly, because twice Roberts has not been politically neutral -- once in affirming the constitutionality of ObamaCare’s mandatory insurance on grounds not argued by the government and now in deciding that including a question about citizenship while constitutionally permissible and done according to the relevant statutes might have been done for an undeclared motive, partisan advantage. By waiting until the last day of the term to announce his decision, he in effect gave himself a pocket veto. This is so because the time for printing the forms was so close and the census due to begin in October, shortly after the court returns for a new term. Though the case was remanded to take evidence about the purpose of the question it is likely the conclusion of that exercise below which would certainly return to his court could not be resolved in time by the Roberts’ court.
While the government at first seemed to concede defeat, it’s not at all certain that is the case.
Exactly how this will proceed remains up in the air, but in the Wall Street Journal, two distinguished lawyers, David B. Rivkin Jr. and Gilson B. Gray, have offered the president a solution.
Section 2 of the 14th Amendment provides that if a state denies the franchise to anyone eligible to vote, its allotment of House seats shall be “reduced in the proportion which the number of such... citizens shall bear to the whole number of... citizens... in such state.” This language is absolute and mandatory. Compliance is impossible without counting how many citizens live in each state. [snip] The president should issue an executive order stating that, to comply with the requirements of Section 2 of the 14th Amendment, the citizenship question will be added to the 2020 census. In addition, he can order the Commerce Department to undertake, on an emergency basis, a new Census Act rulemaking.
That would trigger another round of litigation. Opponents would choose a federal district court likely to block it again, and the Justice Department would have to seek the Supreme Court’s intervention during its summer recess. While rare, such an emergency review has happened before. With the justification for the citizenship question being clear and compelling, the administration should prevail.
The census has in recent years taken on more than a tinge of partisanship. Soon after taking office, President Obama required the director of the Census to report directly to the White House, rather than as is customary to the Commerce Secretary.
The decision was made last week after California Rep. Barbara Lee, chair of the Congressional Black Caucus, and Hispanic groups complained to the White House that Judd Gregg, the Republican senator from New Hampshire slated to head Commerce, couldn't be trusted to conduct a complete Census. The National Association of Latino Officials said it had "serious questions about his willingness to ensure that the 2010 Census produces the most accurate possible count."
Anything that threatens the integrity of the Census has profound implications. Not only is it the basis for congressional redistricting, it provides the raw data by which government spending is allocated on everything from roads to schools. The Bureau of Labor Statistics also uses the Census to prepare the economic data that so much of business relies upon. "If the original numbers aren't as hard as possible, the uses they're put to get fuzzier and fuzzier," says Bruce Chapman, who was director of the Census in the 1980s.
Mr. Chapman worries about a revival of the effort led by minority groups after the 2000 Census to adjust the totals for states and cities using statistical sampling and computer models. In 1999, the Supreme Court ruled 5-4 in Department of Commerce v. U.S. House that sampling could not be used to reapportion congressional seats. But it left open the possibility that sampling could be used to redraw political boundaries within the states.
I n truth, the census fight is about the allocation of political power, as it was when the slave states sought to have slaves counted for the purpose of allocating political districts even though the slaves could not vote. It has been increasingly about money as well with federal allocations depending on number of residents, not residents eligible to vote. There’s every incentive for localities greedy for funds and increased power to welcome illegals into their districts without letting us know how many they harbor.
Jonathan Tobin notes that historically the citizenship question was never absent from the long-form census which some Americans receive and is on other government questionnaires outside the census such as the annual American Community Survey.
What’s also obvious is that knowing the total number of citizens, as opposed to legal or illegal aliens, is useful information. Inquiring about citizenship status when you’re counting people is hardly intrusive or an abuse, let alone illegal, as previous court challenges to various questions have reaffirmed.
Democrats say that illegal aliens, as well as legal immigrants who are not citizens but who may be living with those that are here without permission, may be highly reluctant to answer the census questions. If true, that could have an impact on the numbers and, as Democrats fear, result in an undercounting of population in areas with heavy concentrations of illegal immigrants, making it harder for local governments to plan and get federal aid. Even more important than that, if this assertion were correct, it could result in states with large numbers of illegal immigrants not getting as many congressional districts as they might have if every person -- legal and illegal -- were included in the count.
But the assumption that illegal and legal aliens were happy to fill out these forms in 2010 but won’t do so again is unfounded. It is highly unlikely that illegal aliens are filling out census questionnaires -- or any government survey -- even if the word “citizen” is banished from the form. Illegal immigrants and even those with legal resident status tend to be extremely skittish -- for understandable reasons -- about doing anything that might, even in theory, attract attention from the government. The number of illegal immigrants shunning the census if it includes a question about citizenship isn’t likely to be much greater than the total of those who did so in 2010 when there was no such question.
The second point is just as obvious but is also clearly rejected by liberals. Including illegal immigrants in the count so as to ensure that states with large numbers of them get maximum representation in the House is inherently fraudulent. While the goal of the census is to count every person residing in the country, the notion that its purpose is also to ensure that those who are subject to deportation if caught are as entitled to fair representation in Congress as U.S. citizens is as bizarre as it is untenable.
It appears that a significant majority of Americans agree that the citizenship question should be included in the census:
A majority of voters in a new poll say that a question about U.S. citizenship should be included in the 2020 census, an issue currently before justices on the Supreme Court.
Six in 10 registered voters, 60 percent, in a Hill-HarrisX survey released Tuesday said that the U.S. Census Bureau should ask the citizenship question even if it results in fewer responses. Another 21 percent said the question should not be included, while 19 percent were unsure.
They’d probably agree with Tobin as well that the main aim of those objecting to the question is to blur “the distinction between citizens and non-citizens so as to advance an agenda of amnesty for illegal immigrants.”
Nor is there much factual basis for asserting that a citizenship question will reduce the accuracy of the census.
"The first time the citizenship question was on the census was 1820,” remarked von Spakovsky. “It was then consistently on the census up through 1950. In 1950, the Census Bureau decided that rather than send out one census form, they would send out two forms: a short-form and what they called a long-form.
Von Spakovsky explained how the Obama administration removed the “citizenship question” from the census in 2010, transferring it a new Census Bureau analysis entitled the American Community Survey.
“The long-form had more questions on it [and] went out to 1-in-6 households across the country, and it also had a citizenship question on it,” recalled von Spakovsky. “The long-form was used through the 2000 census. The 2000 census -- the long-form -- was sent out with the citizenship question on it. They then decided during the Obama administration in 2010 not to send out the long-form anymore. Instead, they would only send out the short-form, but they decided to create a second survey form in order to get more current information.”
Von Spakovsky went on, “[The American Community Survey] doesn’t go out every ten years. It goes out every year. … It’s very long. It has a lot of questions on it. it goes out to 1-in-36 households. It has a citizenship question on it. The citizenship question is currently being sent out in a Census Bureau survey. The only thing the Trump administration said was, ‘We’re going to take that citizenship question that is on that current survey sent out by the Census Bureau, and we’re going to move it back to the regular census form.’ And yet that’s portrayed as some sort of nefarious, unprecedented action by the administration.”
I want the President to fight this and think the idea of an executive order along the lines Rivkin and Gray suggest looks like a promising avenue to do so. It also occurs to me that the power of the Supreme Court rests significantly on the public’s acceptance of its neutral application of law and recognition of the limits of its powers. Chief Justice Roberts has now twice done great damage to the public’s belief in the Supreme Court’s authority and the deference owed it.
In a lighter vein, viewing the perfervid yapping on the left about how horrible the USA, Betsy Ross, Thomas Jefferson, the Fourth of July and the President are, I invite you to this lovely and hilarious piece by an immigrant to the U.S. by Oleg Atbashian.
Equating our two cultures [The West’s and the Islamic nations}is not just unnatural -- it's suicidal. We should consider ourselves lucky that a few generations ago Western nations managed to lift themselves out of the sewer in which humanity lived for thousands of years. These nations have mastered science, arts, medicine, increased life expectancy, and developed a legal system that grants more rights and freedoms to individual citizens than any other culture in history. The advancement is reciprocal: the more freedoms the individuals have, the better off the nation is economically. At the head of this upward movement is the United States, the first nation to put individual freedoms above the government's interests. Placing the government in the service of the people at an age when the rest of the world viewed the people as mere servants to their governments.
The vertical map of the world's cultures is never a still picture; they are moving along the entire visible length of the stairwell of progress. The invisible flights of stairs are still ahead of us -- a terra incognita. How far up does the stairwell go? Is there an end to it? How soon will humanity get there, and how much has already been covered? If we want answers we shouldn't be stopping the pioneers. We must celebrate them.
As for the poor bastards still down at the bottom, you may empathize with them all you want. But you may also feel a relief that at least some part of the human race has found the ability to clean up their act and show the way to other nations -- and a hope that one day, with the right attitude, the others may also climb out of the sewer.
And that is what the Fourth of July means to this author. Fireworks, barbecues, and department store sales are optional.
Laugh at the left -- they deserve derision.
This is an excellent article! I highly suggest taking the time to read and understand the use of Unconstitutional Overreach, and the Supreme Court Judges ruling on Executive Orders...
I view the census from my understanding from the constitution as a directive to count all persons. It does not spell out what questions must be on the census. Data is in the best interest of gov't not just the left-wing democrat party only.
I ask that my President stand his ground and insist that the citizenship question be included with the form.
The SCOTUS to me kicked the can down the road.