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I’ve been thinking further about the Chief Justice’s opinion in the Census case, Department of Commerce v. New York (full opinion here). I am concerned that his opinion may reflect a truly radical and dangerous idea, in a way that he may not have considered. Though frankly, this seems unlikely, as he is an extremely intelligent and experienced lawyer and judge.
I find the Chief’s reasoning very troubling, and his rationale was shared by none of the other eight Justices. The Chief thought that the substantive decision made by the Secretary of Commerce — to include a citizenship question on the census long form — was perfectly permissible as a general proposition. However, the Chief thought that the possibly bad motives of this particular Secretary made the decision impermissible.
It strikes me that this is a very dangerous idea, in terms of the proper functioning of our government with the separation of powers. The Court is supposed to stand for the rule of law. But the standard adopted by the Chief is, quite literally, that a decision can be impermissible when made by a Cabinet Secretary appointed by one President — say, one whose name rhymes with “Ronald” but isn’t “Ronald” — while the very same decision is perfectly permissible if made by a Cabinet Secretary appointed by President Obama, or by a hypothetical President whose name might rhyme with, oh, I don’t know, perhaps “Twit.”
This is the opposite of the rule of law. This is authorizing every District Court Judge in the United States to allow sweeping and intrusive discovery into the motivations behind every discretionary decision made by an Executive Branch official, and overturn such decisions if the Judge does not like the decision-maker’s motives. But it establishes no rule that would prevent the exact same decision from being made by a Executive Branch decision-maker that the Judge favors.
I. Summary of the Issues in the Census Case
Parsing the decision is quite difficult. Here is a summary:
(1) There was a Constitutional argument against the Secretary’s decision based on the Enumeration Clause, rejected in Sec. III of the Chief’s opinion. I think that this prevailed 5-0, with the four Leftist Justices abstaining. The Chief and the other four Conservatives definitely rejected the Constitutional argument, while the Leftist dissent (authored by Breyer, joined by the others) neither joined in nor dissented from this section.
(2) There was a statutory argument based on alleged technical violations of certain Census statutes, rejected in Sec. IV.C of the Chief’s opinion. I think that this also prevailed 5-0, with the four Leftist Justices abstaining. Again, the Chief and the other four Conservatives definitely rejected this statutory argument, while the Leftist dissent neither joined nor dissented from this section.
(3) There was a statutory argument based on the Administrative Procedures Act, with the issue being whether the Secretary’s exercise of discretion was “arbitrary and capricious.” The Secretary prevailed on this issue 5-4, with the Chief and the other four Conservatives definitely upholding the decision under the “arbitrary and capricious” standard, and the four Leftists reaching the opposite conclusion.
(4) Then there was the argument that the justification presented by the Secretary was “pretextual.” The Secretary lost on this issue 5-4, with the Chief and the four Leftists overturning the decision on this basis, and the four Conservatives vigorously dissenting.
I found Justice Thomas’s dissent (joined by Gorsuch and Kavanaugh) outstanding. Here are the highlights:
Part IV–B of the opinion of the Court correctly applies this standard to conclude that the Secretary’s decision
survives ordinary arbitrary-and-capricious review. That holding should end our inquiry.
But the opinion continues. Acknowledging that “no particular step” in the proceedings here “stands out as inappropriate or defective,” even after reviewing “all the evidence in the record . . . , including the extra-record discovery,” ante, at 26, the Court nevertheless agrees with the District Court that the Secretary’s rationale for reinstating the citizenship question was “pretextual—that is, that the real reason for his decision was something other than the sole reason he put forward in his memorandum, namely enhancement of DOJ’s VRA enforcement efforts.” 351 F. Supp. 3d 502, 660 (SDNY 2019); see ante, at 28. According to the Court, something just “seems” wrong. Ibid.
This conclusion is extraordinary. The Court engages in an unauthorized inquiry into evidence not properly before us to reach an unsupported conclusion. Moreover, each step of the inquiry offends the presumption of regularity we owe the Executive. The judgment of the District Court should be reversed.
. . .
The Court’s erroneous decision in this case is bad enough, as it unjustifiably interferes with the 2020 census. But the implications of today’s decision are broader. With today’s decision, the Court has opened a Pandora’s box of pretext-based challenges in administrative law. Today’s decision marks the first time the Court has ever invalidated an agency action as “pretextual.” Having taken that step, one thing is certain: This will not be the last time it is asked to do so. Virtually every significant agency action is vulnerable to the kinds of allegations the Court credits today. These decisions regularly involve coordination with numerous stakeholders and agencies, involvement at the highest levels of the Executive Branch, opposition from reluctant agency staff, and—perhaps most importantly—persons who stand to gain from the action’s demise. Opponents of future executive actions can be expected to make full use of the Court’s new approach.
Incidentally, Justice Alito did not join Thomas because he went ever further, concluding that the Court had no authority to review the Secretary’s decision even under the “arbitrary and capricious” standard. Here’s the highlight from Alito:
Now, for the first time, this Court has seen fit to claim a role with respect to the inclusion of a citizenship question on the census, and in doing so, the Court has set a dangerous precedent, both with regard to the census itself and with regard to judicial review of all other executive agency actions. For the reasons ably stated by JUSTICE THOMAS, see ante, p. ___ (opinion concurring in part and dissenting in part), today’s decision is either an aberration or a license for widespread judicial inquiry into the motivations of Executive Branch officials. If this case is taken as a model, then any one of the approximately 1,000 district court judges in this country, upon receiving information that a controversial agency decision might have been motivated by some unstated consideration, may order the questioning of Cabinet officers and other high-ranking Executive Branch officials, and the judge may then pass judgment on whether the decision was pretextual. What Bismarck is reputed to have said about laws and sausages comes to mind. And that goes for decisionmaking by all three branches.
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 Secretary Ross for that decision were his only reasons or his real reasons. Of course, we may determine whether the decision is constitutional. But under the considerations that typically guide this Court in the exercise of its power of judicial review of agency action, we have no authority to decide whether the Secretary’s decision was rendered in compliance with the Administrative Procedure Act (APA).
II. A Modest Proposal
I think that the fundamental problem is with our political norm. We have become accustomed to the idea that the Judicial Branch can issues injunctions and mandates to the Executive Branch. This seems normal to us, but it is not necessarily so.
I want you to imagine something different. I want you to imagine that a single US District Judge interpreted the Constitution to require school busing as a remedy for racial discrimination. This isn’t a stretch, because SCOTUS actually upheld such decisions in the past. Now let’s imagine that the entity required to provide busing was the federal government — say because the jurisdiction was DC. (This may or may not have actually happened; I don’t recall and don’t really care for purposes of this hypothetical.)
Now imagine that, in order to enforce its decision, this single US District Judge issued an injunction to every member of Congress, enjoining every Representative and every Senator from voting against a bill that had been introduced to fund the busing mandated by the District Court.
That’s right. Imagine a federal Judge giving orders to Senators and Representatives about how they had to vote.
What is your reaction?
Outrage, I hope. This would be an inconceivable violation of the separation of powers. It would be immediately recognizable as judicial tyranny.
I submit that the situation is precisely the same with respect to the President and other members of the Executive Branch.
I am envisioning a blanket rule against injunctive or mandatory relief against Executive Branch officials. I recognize that this may cause a variety of problems. However, allowing Judges to order around Executive officials also causes problems.
This does not mean that people victimized by wrongful action of Executive officers would be without a remedy. The remedy, however, would involve the Judiciary acting within its proper authority — for example, by awarding damages. Perhaps even punitive damages.
I would like some feedback on this. A few examples from both recent and more distant history:
- In the Steel Seizure Case (Youngstown Sheet & Tube), SCOTUS could have found that the Executive’s seizure of the steel mills was impermissible, but declined to issue an injunction. It could have allowed recovery of damages, perhaps including punitive damages.
- In the Travel Ban Case, the lower court could have declined to issue an injunction, and simply awarded damages to the individual complaining Plaintiffs.
- In the Nixon Tapes Case, the Court could have declined to order the President to turn over materials, but could have ordered an instruction that the President’s refusal to do so permitted the jury to infer that the tapes would have revealed the truth of the conspiracy to cover-up the Watergate break-in.
I understand that this is not a panacea, but it seems to me that the danger of judicial overreach outweighs the contrary dangers.
I also understand that, in ordinary civil cases, injunctive relief is an available remedy (though it is supposed to be available only in cases of “irreparable harm,” and the meaning that some judges attach to the word “irreparable” leaves me inclined to quote Inigo from Princess Bride. I submit, however, that injunctive relief issued by the Judicial Branch to one of the other branches creates serious separation of powers problems that are not present in a regular civil case.
I’m expecting responses about the “rule of law.” But this does not mean the “rule of judges,” and the separation of powers is a key component of the “rule of law.”
III. Siding with my old buddy Tom
So it turns out that my terrific old friend Tom happened to address this precise question, in a letter to Abby, the wife of my heroic friend John. Good ol’ Tom is on my side.
From an 1804 letter from Thomas Jefferson to Abigail Adams:
The Constitution . . . meant that its coordinate branches should be checks on each other. But the opinion which gives to the judges the right to decide what laws are constitutional and what not, not only for themselves in their own sphere of action but for the Legislature and Executive also in their spheres, would make the Judiciary a despotic branch.”
Jefferson had reason to know. He was responding to Marbury v. Madison, which found that Jefferson’s Secretary of State (aka the Father of the Constitution) acted improperly by declining to deliver commissions to certain “midnight judges” that had been appointed by Abby’s husband John Adams (aka the Colossus of Independence, though perhaps this was not his finest moment). Madison, incidentally, was specifically instructed not to deliver the commissions by Jefferson (aka the Father of the Declaration of Independence) — Jefferson being the elected President at the time.
The appointments had been properly sealed but not delivered by a certain Virginian named John Marshall, who had been the Secretary of State under President Adams, and who — surprise, surprise — was Chief Justice of SCOTUS by the time that the case came up for decision. (Marshall was another one of those “midnight judges,” though in his case, the commission was delivered).
Even Chief Justice Marshall, however, balked at ordering Jefferson or Madison to deliver the commissions. He knew darned well what would have happened. His order would have been ignored, and rightly so. The Executive doesn’t get to order around the Judiciary — and vice versa, darn it!
So Marshall crafted a clever opinion in which he first found that Marbury was entitled to the commission, and then found that he should have the remedy of a writ of mandamus (an order that the commission be delivered), but then — third of all — found that SCOTUS could not issue such a writ because the Judiciary Act was unconstitutional, so SCOTUS lacked jurisdiction.
More from Jefferson, from a letter in 1820:
To consider the judges as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men and not more so. They have with others the same passions for party, for power, and the privilege of their corps. Their maxim is boni judicis est ampliare jurisdictionem [good justice is broad jurisdiction], and their power the more dangerous as they are in office for life and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves.”
Here is my source for these Jefferson quotations.
My conclusion remains uncertain. I am very concerned about what appears, to me, to be an increasing tendency toward judicial overreach. However, I want to consider thoughtful responses to the points that I raise, and in particular:
- Do you agree with me that the approach taken by Chief Justice Roberts is even more dangerous than the approach taken by the four Leftists, because the Chief would allow the Judiciary to overturn an action taken by one Executive official while upholding the very same action taken by another Executive official.
- What do you think of my suggestion that judicial injunctions or mandates directed at Executive officials present a separation of powers problem?