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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
But Roberts agreed with the substantive legal argument that the citizenship question can be asked. His issue was with whether the addition of the question was done with proper justification and procedure under the APA. His concern is that gov agencies must do things in a certain way.
Many folks here are jumping on him, saying he should have backed off and let the agency proceed since the underlying question was ok, and not have made such a big deal about the procedural problem. My question is, would those folks be making the same argument if they did not like the census question to be asked?.
Is it just the political result they don’t like, or is it truly a criticism of Roberts judicial reasoning?
Generally, I’m not a fan of prosecuting process crimes/procedural missteps. It makes me suspicious of the prosecutor’s/judge’s motivations. But, I admit, in ethics, you cannot justify good ends (including the citizenship question on the census) by bad means. I need it explained in laymen’s terms — what were the bad means used by Commerce? And, if they were so bad, why didn’t the conservative justices concur with the majority?
It’s criticism of uncommon sense. I don’t care if the yucky guy does something he ought for unseemly reasons. I will applaud the racist who picks up the black stranded motorist.
You pretend Roberts did his thing for no personal reasons. He just found “Principled” legalize to do it. Just as he did with the aca.
This kind of crap is why we have Donald Trump and not one of the other 21. This kind of crap is why the country continually gets ratcheted one way.
Dorthy we are not in Kansas anymore.
I don’t like the political result, that is true, but if the left wanted to implement something that is clearly permitted under the constitution, but gave conflicting or specious reasoning for it, I wouldn’t care. Let them do it. But, of course, that isn’t what they do, which is why your gun control analogy didn’t work. They give tortured and specious reasoning to allow government to do things that are obviously not constitutional, which conservatives (sometimes) stop.
I think Roberts missed the forest for the trees, and got hung up on a technicality. I think he’s also, at least partially, bought into the left’s judicial philosophy that a judge’s subjective evaluation of people’s motives should play a crucial role in decision making. Ideally, he’d leave off speculating about motives and restrict himself to what is/isn’t plainly allowed by the constitution. But since he’s decided that’s his job, I only hope that he is similarly suspicious of liberal motives, and has the courage to act on those suspicions, the next time a liberal cause comes before the court.
This is similar to the great Leftist freakout recently about Stare Decisis.
Clarence Thomas has it right when he says it doesn’t matter if somebody made a decision years ago that was wrong. What matters is whether the case permitted by the Constitution.
So it’s emerging evidence that Wilbur Ross overtly lied. Which means:
This is my issue with Gary. Gary conflates any potential thing he deems bad with the administration to be Trump’s fault. In this post, Gary accuses Trump of lying, but it’s Ross he cites as lying.
But apparently that’s enough to conflate Trump with lying, and we’re right back to Orange Man Bad. Note that in the decision, Roberts didn’t describe the citizenship question as having some kind of racial basis – he called it something else:
However, the chief justice said that the decision to add the citizenship question was not “substantively invalid.”
Lying?
I can respect that consistency, and I have to assume Thomas and the other conservatives would do the same.
The other conservatives seem to simply think Roberts went too far in looking into the agency’s motives. But it was the agency’s apparent pre textual, possibly false rationale that bothered him, not that he disliked the reason given. I can see both sides, but I don’t mind the Court erring on the side of forcing the agency to be more transparent and honest. One of the biggest modern threats to liberty is the ability of federal agencies to make major decisions that disrupt lives with little oversight as to their reasoning and rationales. Roberts gave a small push in the other direction.
To me, it’s similar to 4th Amendment search and seizure issues that come up. Sometimes, not often, officers will use some contrived post hoc rationalization for doing a search without a warrant or for obtaining a warrant. The search could have had a valid justification, but for whatever reason, maybe simple time pressures, they mislead the court as to the real reason. Some may say “no harm, no foul” and I get that, but I think the court has a responsibility to invalidate those warrants. It’s ok to do the search as long as the proper procedure is followed. The procedure is what protects liberty. This is a similar situation.
No more ‘foolish’ than my wish for a world in which people who major in grievance studies suffer a life of menial employment and suffocating debt, in return for the possibly irreparable damage they have done to my country. A bit mean-spirited, I admit, but far from foolish.
From Powerline https://www.powerlineblog.com/archives/2019/06/the-citizenship-question.php
Quoting Alito, “To put the point bluntly, the Federal Judiciary has no authority to stick its nose into the question whether it is good policy to include a citizenship question on the census or whether the reasons given by (Commerce) Secretary Ross for that decision were his only reasons or his real reasons.”
Well, because conservatism – modern American version – prescribes tough medicine in moat cases. Tough medicine is rarely popular. Roberts is human and wants to be popular (or wants his tenure regarded so) … hence the ease with which he justifies his otherwise half-wit rulings.
Well, because conservatism – modern American version – prescribes tough medicine in moat cases. Tough medicine is rarely popular. Roberts is human and wants to be popular (or wants his tenure regarded so) … hence the ease with which he justifies his otherwise half-wit rulings.
Unbelievable.
This is the naivety that freaks me out. We lose our sovereign territory to the open borders crowd and our sovereign rights of citizenship (consent of the governed by voting for our apportioned representation) because some bureaucrat didn’t hold his mouth right while asking pretty please, may we do something totally consistent with the Constitution?? I’m not consoled by Roberts’s push back, I’m horrified.
Let me be more direct. I work for a living. I don’t have the time to run down all of the reasons to prove to you that Wilbur Ross lied. But see: https://www.latimes.com/politics/la-na-pol-census-hearing-citizenship-question-wilbur-ross-20190314-story.html. https://www.washingtonpost.com/opinions/the-supreme-court-throws-the-thesaurus-at-trumps-lies/2019/06/28/0103906e-99b4-11e9-830a-21b9b36b64ad_story.html?utm_term=.6ad6f6220ebd. https://www.scotusblog.com/2019/06/symposium-roberts-court-stops-the-census-citizenship-question-for-now/
The Administrative Procedures Act requires truthfulness. Wilbur’s excuse is B.S. on its face. If you honestly believe Wilbur’s excuses, I honestly would class you with Al Sharpton as to truthfulness, or Marianne Williamson for naivete.
It took three damn tries for the Trump Administration to finally get the so-called “Muslim ban” through, as they simply could not, for the life of them, comply with federal law. Why? Because to work for the Trump Administration required an Applicant to be loyal to Trump the person, and not conservative principles. Basic intelligence was not needed. Truthfulness? How about the number of people coming to see Trump being inaugurated being more than Obama?
There is a consequence for having a liar be President and/or Secretary of Commerce, and to engage in devotion to a specific person and not a coherent political movement. The consequence is that you lose lawsuits like this one, the control of the House of Representatives in 2018, and likely the Presidency itself in 2020. Obama lost 800 legislative seats over 8 years. Trump has lost half of that in only two years. After the 2010 legislative races, we redistricted the House of Representatives for control for the next decade. Only a Trump could have us lose the House of Representatives. But with Trump at the head of the ticket, I predict Democratic control of the House of Representatives for the 2020’s.
The Trump Administration is the Gang that Can’t Shoot Straight. And Trump will be a failed one term President like Jimmy Carter.
Believe it.
So you are advocating voting for lying as a policy?
Or incompetence?
Both appear to be hallmarks of the Trump Administration which cannot do even the simple things like acknowledging that Obama had more people come to his inauguration (which would you expect given the number of liberals on the east coast), or that Hillary won the popular vote and didn’t have some 4 million votes by illegal aliens, or that the Russians overtly did their best to interfere with our electoral process.
Just answer questions truthfully. The truth will set you free.
Between the incompetence and dishonesty of the Trump Administration, and the policies of the Dems, I truly worry for my country.
I was happy to have read that dissent from Alito. I thought I might have gone out on a limb when I commented earlier. But it just seemed wrong to me. Everywhere this administration goes with immigration, there are judges put in by Obama to block the way. I thought , what is this even doing at the Supreme Court? Just like Trump’s ban on immigration from a handful of specific countries, the administrative move to add BACK the citizenship question seemed obviously within his purview. But Noooooooo way! Immediately here comes the injunction. I am waiting for this kind of over reach to occur in Trump’s second term. And then I will be waiting for Trump to defy it. Equal power and such….
I see no lies of consequence. I’m sure there are lies, all politics involves lies.
I find that it is usually helpful to read the original text, when arguing about an issue. Pages 26-29 of Chief Justice Robert’s opinion states the following:
“That evidence showed that the Secretary was determined to reinstate a citizenship question from the time he entered office; instructed his staff to make it happen; waited while Commerce officials explored whether another agency would request census-based citizenship data; subsequently contacted the Attorney General himself to ask if DOJ would make the request; and adopted the Voting Rights Act rationale late in the process. In the District Court’s view, this evidence established that the Secretary had made up his mind to reinstate a citizenship question “well before” receiving DOJ’s request, and did so for reasons unknown but unrelated to the VRA. 351 F. Supp. 3d, at 660.
“The Government, on the other hand, contends that there was nothing objectionable or even surprising in this. And we agree—to a point. It is hardly improper for an agency head to come into office with policy preferences and ideas, discuss them with affected parties, sound out other agencies for support, and work with staff attorneys to substantiate the legal basis for a preferred policy. The record here reflects the sometimes involved nature of Executive Branch decisionmaking, but no particular step in the process stands out as inappropriate or defective.
“And yet, viewing the evidence as a whole, we share the District Court’s conviction that the decision to reinstate a citizenship question cannot be adequately explained in terms of DOJ’s request for improved citizenship data to better enforce the VRA. Several points, considered together, reveal a significant mismatch between the decision the Secretary made and the rationale he provided.
“The record shows that the Secretary began taking steps to reinstate a citizenship question about a week into his tenure, but it contains no hint that he was considering VRA enforcement in connection with that project. The Secretary’s Director of Policy did not know why the Secretary wished to reinstate the question, but saw it as his task to “find the best rationale.” Id., at 551. The Director initially attempted to elicit requests for citizenship data from the Department of Homeland Security and DOJ’s Executive Office for Immigration Review, neither of which is responsible for enforcing the VRA. After those attempts failed, he asked Commerce staff to look into whether the Secretary could reinstate the question without receiving a request from another agency. The possibility that DOJ’s Civil Rights Division might be willing to request citizenship data for VRA enforcement purposes was proposed by Commerce staff along the way and eventually pursued.
“Even so, it was not until the Secretary contacted the Attorney General directly that DOJ’s Civil Rights Division expressed interest in acquiring census-based citizenship data to better enforce the VRA. And even then, the record suggests that DOJ’s interest was directed more to helping the Commerce Department than to securing the data. The December 2017 letter from DOJ drew heavily on contributions from Commerce staff and advisors. Their influence may explain why the letter went beyond a simple entreaty for better citizenship data—what one might expect of a typical request from another agency—to a specific request that Commerce collect the data by means of reinstating a citizenship question on the census. Finally, after sending the letter, DOJ declined the Census Bureau’s offer to discuss alternative ways to meet DOJ’s stated need for improved citizenship data, further suggesting a lack of interest on DOJ’s part.
“Altogether, the evidence tells a story that does not match the explanation the Secretary gave for his decision. In the Secretary’s telling, Commerce was simply acting on a routine data request from another agency. Yet the materials before us indicate that Commerce went to great lengths to elicit the request from DOJ (or any other willing agency). And 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. We are presented, in other words, with an explanation for agency action that is incongruent with what the record reveals about the agency’s priorities and decisionmaking process. It is rare to review a record as extensive as the one before us when evaluating informal agency action— and it should be. But having done so for the sufficient reasons we have explained, we cannot ignore the disconnect between the decision made and the explanation given. Our review is deferential, but we are “not required to exhibit a naiveté from which ordinary citizens are free.” United States v. Stanchich, 550 F. 2d 1294, 1300 (CA2 1977) (Friendly, J.). The reasoned explanation requirement of administrative law, after all, is meant to ensure that agencies offer genuine justifications for important decisions, reasons that can be scrutinized by courts and the interested public. Accepting contrived reasons would defeat the purpose of the enterprise. If judicial review is to be more than an empty ritual, it must demand something better than the explanation offered for the action taken in this case.
“In these unusual circumstances, the District Court was warranted in remanding to the agency, and we affirm that disposition. See Florida Power & Light Co. v. Lorion, 470 U. S. 729, 744 (1985). We do not hold that the agency decision here was substantively invalid. But agencies must pursue their goals reasonably. Reasoned decisionmaking under the Administrative Procedure Act calls for an explanation for agency action. What was provided here was more of a distraction.
“The judgment of the United States District Court for the Southern District of New York is affirmed in part and reversed in part, and the case is remanded for further proceedings consistent with this opinion.
“It is so ordered.”
The bottom line is in the emphasized portion that states:
Our review is deferential, but we are “not required to exhibit a naiveté from which ordinary citizens are free.” United States v. Stanchich, 550 F. 2d 1294, 1300 (CA2 1977) (Friendly, J.). The reasoned explanation requirement of administrative law, after all, is meant to ensure that agencies offer genuine justifications for important decisions, reasons that can be scrutinized by courts and the interested public. Accepting contrived reasons would defeat the purpose of the enterprise. If judicial review is to be more than an empty ritual, it must demand something better than the explanation offered for the action taken in this case.
The Trump Administration needs to get its act together and stop bs-ing the Court and the rest of all of us.
Those were not lies of consequence. But in this case, lying finally caught up with the Trump Administration. From page 28 of the Court’s slip opinion:
“Our review is deferential, but we are ‘not required to exhibit a naiveté from which ordinary citizens are free.’ United States v. Stanchich, 550 F. 2d 1294, 1300 (CA2 1977) (Friendly, J.). The reasoned explanation requirement of administrative law, after all, is meant to ensure that agencies offer genuine justifications for important decisions, reasons that can be scrutinized by courts and the interested public. Accepting contrived reasons would defeat the purpose of the enterprise. If judicial review is to be more than an empty ritual, it must demand something better than the explanation offered for the action taken in this case.”
Some people go to great lengths to justify a conclusion they wish to come to.
The real funny part of SCOTUS’s and the Democrats outrage about this question is that the question was previously acceptable on this form. The question is currently being used on other census forms. It was only removed from the current form so that the Democrats could get more House seats and the fight now about putting it back is about the possibility that the Dems will lose house seats. All this other arguments is tripe. The only discussion is do you want the Census to be accurate and the House representatives to accurately reflect the reality of the situation, or do you want to let the Dems get their way any way possible again.
YES! So why can’t we learn how to shoot straight? Why did it take three tries to get the travel ban right?
Because the judges did not want it to be right. So it was picked apart. Just like this was.
It seems to me that another problem with John Roberts is that he sees things that only he can see. Uh, that’s a problem. Referring to this case and the Obamacare case, it seems that Chief Justice Roberts wants to play the Henry Clay compromiser which, of course, that is not his job. He makes stuff up that the other Republican-appointed justices can’t see, and he makes stuff up that the other Democrat-appointed justices can’t see either. Thomas, Alito, Gorsuch, and probably Kavanaugh don’t know what he is talking about because they are looking at the Constitution while Breyer, Kagan, and especially Ginsburg and Sotomayor are in the mode to defeat Trump at all costs and spread Leftism throughout the land at all costs.
How is someone in the future supposed to read Roberts’ weird opinions? It’s like Harry Blackmun finding the word trimester in the United States Constitution. Some of these doddering fools and most of the lower court judges are like Jimmy Carter. They largely believe Trump and most Republicans are illegitimate anyway, so they will find some way to rationalize ruling against the conservatives.
Brilliant comment.
Oh, please. Roberts changed the Obamacare individual mandate to a tax so he wouldn’t have to invalidate it. Why didn’t he do what he did here, and tell Congress their justification/understanding of the bill was all messed up, invalidate it, send it back to them and tell them to get it right? The truth in that case didn’t set him free to do what he wanted – which was to somehow find a way not to invalidate Obamacare – so instead he (unconstitutionally) changed the meaning of the bill to get to where he wanted to go. Now Roberts is suddenly a stickler for process and detail. Give me a break.
One of the curious aspects of this case is how the record was created by the lower federal court. In most administrative law cases the record is limited to the official administrative record. Plaintiffs are not allowed additional discovery such as internal emails, documents, and depositions. I know, I’ve been through the process of challenging an administrative rule. It’s one of the reasons it’s so difficult to successfully challenge the regulatory process which is frustrating since, as I mentioned in an earlier comment, most regulatory actions are taken and supported for reasons other than those officially stated.
In this case the plaintiffs were permitted additional discovery and it is the results of that discovery that Justice Roberts refers to in his opinion. I assume the additional discovery was approved by the lower court as part of the newly formulated Trump Exception to administrative law.
For this reason, the hope expressed in some of the previous comments that this decision will have broader impacts on controlling administrative action is not fated to be fulfilled. Courts will continue to routinely refuse additional discovery requests by plaintiff limiting their review to the artfully constructed administrative record designed to contain acceptable lies.
That is a great point. One of the benefits of Robert’s Obamacare decision is that the law has shifted well in out favor on a long-term basis. You know, losing the battle while winning the war.
And it is within the realm of possibilities that I am being a Pollyanna.