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David Frenchism and the Supreme Court Decision
Over at National Review, David French has this to say about the Supreme Court decision preventing the administration from asking citizenship questions on the census:
Against this legal background, I believed that — like with the travel-ban case — a chaotic process would matter less than the very broad discretion granted the president by existing law. I was wrong.
Today, Justice John Roberts joined the four more progressive judges to reach a legal conclusion (articulated in a complex series of interlocking and competing concurrences and dissents) that roughly goes as follows: Including a citizenship question in the census is not “substantively invalid.” However, the Administrative Procedure Act applies, and it is “meant to ensure that agencies offer genuine justifications for important decisions, reasons that can be scrutinized by courts and the interested public.” Since the administration’s explanation for its agency’s action was “incongruent with what the record reveals about the agency’s priorities and decision making process,” the administration failed to meet its APA obligations.
The secretary of commerce had pointed to an assertion from the Department of Justice that the question would assist in voting-rights enforcement. To put it simply, the majority did not buy that explanation, finding that it was more of a rationalization: The secretary of commerce decided to include the questions, went hunting for a reason, and eventually got the DOJ to help.
Quite frankly, this sounds about right.
I’m starting to see what Sohrab Ahmari means about “David Frenchism.”
It may be that John Roberts found against the administration because he “did not buy that explanation, finding that it was more of a rationalization.” But that’s certainly not true of “the majority” in the persons of the four liberal justices. They found against the administration because the question concerning citizenship violates their progressive political values, and they would have voted in similar fashion whatever the administration’s argument and however sound it might have been. On one side, there are four leftists justices who vote as a solid body and use every opportunity, and every vote, to push leftism as far as they possibly can without respect to legal niceties. On the other, there are five conservative justices, who to varying degrees understand what is going on, but often think through cases as though they were deciding a homeowners insurance claim rather making fundamental decisions concerning the social and political direction of the nation.
In this case, Roberts voted against the administration because, essentially, they didn’t get the paperwork right. This is French’s “chaos.” He might be right about the chaos, but so what? The question at issue is whether the nation can take account of people’s citizenship status while enumerating them for such purposes as congressional seat apportionment. Naturally, the left wants every warm body counted regardless of citizenship status, since the more bodies they can get over the border, the greater their power grows. The four liberal justices get this and will always vote against allowing citizenship questions.
Until conservatives get it, they will never understand the struggle they are in. This doesn’t mean ignoring the law. It means using some judgment concerning what is truly important with respect to the law in the context of socially significant decisions.
I’m reminded of Sgt. Warden in From Here to Eternity in the scene where Pearl Harbor is attacked, and a corporal won’t let him into the armory because he doesn’t have the proper paperwork. Justice Roberts is that corporal.
Published in General
David French was simply stating why the administration lost. Period.
Shoot the messenger if you must, but don’t think it’s going to advance your (and my) cause.
Yes, I think the dissent’s position is totally respectable, as I implied above. My main point is that Robert’s opinion is respectable too and results in greater scrutiny of federal agencies, which is generally good for the conservative cause. The villainization of Roberts is uncalled for and counterproductive.
I agree with Thomas, and I think Roberts did too. If Ross and his aides had had the common sense to keep their mouth shut and say this is a purely administrative decision they would have won. But they tried to perpetrate a fraud upon the Court and Roberts, in his role as the leader of the Judicial branch, could not accept it.
And my problem is that the greater scrutiny of Federal agencies only happens when they very abnormally do something conservative. That may be a bit hyperbolic, but I do not see how this particular scrutiny is in any way good for conservatism. Thanks.It’s been a good conversation.
Roberts knew exactly what he was doing, and so does French.
OK, now explain how, if it was a tax even thought it wasn’t called a tax, the whole thing wasn’t thrown out for originating in the Senate instead of the House?
And don’t tell me it’s because the bill technically originated in the House (even though the Senate wiped the file clean and started fresh). If we’re going to play “It doesn’t matter what we call it, it is what it is”, that counts for how the Bill originates too.
But Alex Jones really knows…
Citizenship is rapidly turning into a meaningless concept. Which of course, makes the constitution a near meaningless document.
I’m an engineer, not a lawyer. David French is a lawyer, so I’ll take his word for what is going on.
According to French, everyone agrees, including Roberts, that there is nothing substantively improper about asking about citizenship on the census. To my untutored mind, that should have been the end of it. The government either has the right to do something or it doesn’t. But then I don’t have a subtle legal mind.
So they had to consider the justification submitted to the Supreme Court, which apparently was fine as well. The problem was that Roberts was able to suss out the real , secret reasons the administration wanted the citizenship question, and since he found them different from the ones offered (and, apparently, in his view, bad), he voted against the administration.
Also, according to French, there is virtually no chance the administration will ever get the citizenship question on the census, because at this point they’ll never be able to convince Roberts they aren’t doing it for racist reasons.
Maybe this sounds like a great victory for law, liberty and small government to those with subtle legal minds. To my simple mind, stopping the government from doing something everyone, including strict constitutionalists, thinks it is perfectly within its rights to do, because a justice doesn’t like the motives of the administration, doesn’t sound anything like liberty and small government. It sounds like the rule of a man instead of the rule of law.
Actually it counts inhabitants, not citizens.
Why do we even have a census? I’m sure that’s un-Constitutional too.
That easiest way to determine if something is un-Constitutional is if it is actually in the Constitution. The Department of Commerce wasn’t even established until 1903. That’s not in the Constitution. How in the world was the census conducted before that? U.S. Marshals apparently conducted the census until around 1870. Let’s go back to having U.S. Marshals conduct the census; they should find some illegal infiltrators.
Does ANY ordinary average American know what the Department of Commerce actually does and why it was actually created? Stuff that the Treasury Department didn’t want to mess with anymore?
After Obamacare, SCOTUScare, McCaincare, or whatever you want to call it and this, Roberts is ready to become the new Anthony Kennedy. In fact, Roberts might be worse. I think Kennedy was mostly just obsessed with the sex stuff (homosexuality and abortion). I do not know where Roberts is going. Roberts just seems to be scared of the wild Leftists in DC and harming his own reputation which the Leftists tried to destroy years ago.
Bingo
This in my mind make Roberts a tyrant.
I have not yet read the full decision so won’t comment on the merits of the opinions except to add a point based on my experience working in highly regulated areas while in the corporate world having to, for several years, review the Federal Register every day, and dealing with agency staff.
The issue is whether an otherwise legal regulatory act becomes illegal because the reason for it is an impermissable pretext. Here’s the real world situation – 90% of the regulatory process is pretext. Agencies routinely decide what result they want and then backwards engineer the regulatory process and documentation to support their desired outcome.
Contra @garyrobbins the problem is not that Ross and Trump are liars, the problem is they didn’t lie in the usual acceptable manner about what they were doing (I wish they’d done a better job of it). The larger regulatory state, the unconstitutional fourth branch of government, will remain untouched by this decision, because courts generally make this inquiry only when Trump is involved.
Dealing with deep state liars has to start somewhere, and Trump has asked for these fights by appointing nitwit lackeys like Ross [since every competent swamp bureaucrat refused to serve in his Cabinet] and constantly attacking the judiciary as partisan hacks . Now that he’s getting some pushback the Trumpkins are calling foul.
After four years of Biden maybe we can get it right.
Surely you must be joking, and stop calling me Shirley!
Citizenship. Neat concept while it lasted.
Do better how? This decision was going to go this way no matter what Trump and team does. It wasn’t even close.
What if it were not a Trump era census, but one taken during a Democratic administration, and in response to an FBI request, the census takers asked not about citizenship, but whether any firearms were in the home. Let’s say further that when the issue goes through the courts the Democrat administration’s representative gives contradictory, possibly false explanations for adding the question, arguably violating the APA. Does everyone here have the same opinion about what the court should do then?
You mean a completely different situation with completely different intentions asking completely different sorts of questions that have nothing to do with citizen representation in Congress?
I’d do the same thing the illegal aliens are going to do: I’d lie.
Imagine our surprise.
Amen.
I’ll take that as a “no.” But perhaps that’s unfair. Feel free to correct that impression. Perhaps there is a material legal difference between the two questions, rather than a just a difference in the political buttons they push.
I’m sure you see where I’m going with this. If you flipped the political script, would you be okay with the court allowing an agency to act in the same way? Or would you use that potential APA problem as an opportunity to stop something you don’t like politically?
It is suggested above that all the SCOTUS decision are really political anyway, so you might as well pitch in and play that game. I think that path ends in disaster. I think the structure of how decisions are made is more important in the long run.
There would have been another pretext for the ruling. Can’t have questions asked about something that should not even exist, i.e. citizenship.
My impression is, courts typically side with federal agencies. Granting wide latitude, aka “deference”. Is the difference Trump, or is it the alleged legal fumbling of agency lawyers?
Almost every day, I’m reminded of Milton Friedman’s idea that we are much better off when officials do the right thing regardless of their motives.
Questions about firearms have nothing to do with enumerating the population for the purposes of proportional representation, which is the constitutional reason for the census in the first place. A question about citizenship obviously does. It’s that simple.
Notice that it isn’t necessary to try to intuit or suss out the “real reasons” people are trying to do something, or to ferret out some hidden racist agenda, which apparently is what French thinks Roberts has successfully done, and applauds him for it. The only thing necessary, if we actually had a supreme court that kept itself within constitutional limits, is to leave off judging motives, and instead apply ordinary common sense and straightforward reasoning as to whether something the government is attempting is authorized by the constitution or not.
I think John Roberts is being blackmailed. Or he has no spine whatsoever. In either case, I despise him.
Is it foolish of me to wish for a world where the top law graduates of Harvard/Yale/Stanford are condemned to years of drudgery writing wills, evaluating property contracts and proofreading merger offers?
This is a serious concern in our now Surveillance State.
What happens when a free agent goes to DC ? Does the surveillance state find mortifying info on him or a family member. Then the free agent is extorted to get with the program.
No. John Roberts is like most people. Conservative about what he knows best.
What he “knows best” is being Chief Justice of the Supreme Court.