A Constitutional Reality Show

The best training for untangling modern American politics is to spend a decade teaching high school English at a private school, an expensive one, where the kids from good or at least wealthy families put in their time before it’s off to Harvard or Yale or Princeton or wherever. These kids will one day rule the world, and they know it, and they practice for that. And in their junior year it’s Hamlet – the moody young man trying to figure out what is actually going on around him, and wondering what he can do about any of it, or if he should do anything about any of it. He mopes. He’s suicidal – “to be or not to be” is the question. He’s in agony. And so were the students each year as they plowed through that play. They had to write essays on what seemed to be going on and what Shakespeare was revealing about life and the universe and all that. And they usually had nothing to say. They didn’t know what to say – but the essay was due at the end of the week. And they really were supposed to get into Harvard or wherever, so they could blow off the assignment. They needed those high grades, all of them in all their classes. Why was Ophelia dead? Was his mother really a slut? They had to come up with something vaguely plausible. They had to fake it, but elegantly. So they did, and reading and then grading all of those well-put words that never added up to anything at all, was great training for untangling what this or that politician just said. They didn’t say much – but of course those essays were good training for those kids too. They learned to sound elegant saying nothing much at all, making no commitments but keeping all options open. The trick was to sound exceedingly wise while saying pretty much nothing at all. That’s a useful skill. Many of them would become lawyers.

And that means that anyone who has ever taught high school English knows what is going on here:

President Trump and Attorney General William P. Barr began working to find a way to place a citizenship question on the 2020 census just after the Supreme Court blocked its inclusion last month, Mr. Barr said on Monday, adding that he believes that the administration can find a legal path to incorporating the question.

“The president is right on the legal grounds. I felt the Supreme Court decision was wrong, but it also made clear that the question was a perfectly legal question to ask, but the record had to be clarified,” Mr. Barr said in an interview. He was referring to the ruling that left open the possibility that the citizenship question could be added to the census if the administration came up with a better rationale for it.

“It makes a lot of sense for the president to see if it’s possible that we could clarify the record in time to add the question,” Mr. Barr added.

What? But what he was saying was simple. The Supreme Court said we couldn’t do this. Our reasoning was stupid and insulting. But that means we were being asked to come up with something better. Yeah, we previously admitted it was too late for that, but maybe we were kidding, or perhaps exaggerating. We come up with a brilliant reason to do this. We’re working on that. Trust us. We are wise.

And don’t make anything of the fact that all of our lawyers just quit on us:

Barr also acknowledged that the career Justice Department lawyers who had worked on the census question had little appetite to continue on the case after Mr. Trump inserted himself into the process. “We’re going to reach a new decision, and I can understand if they’re interested in not participating in this phase,” Mr. Barr said. The Justice Department announced a day earlier that it was replacing them, a nearly unheard-of move.

In a court filing on Monday in New York, though, plaintiffs in the case asked a judge to block the lawyers’ withdrawal because they did not demonstrate “satisfactory reasons” for the change.

The plaintiffs in the case smelled blood in that water. They want Barr to explain this. Had he fired these guys for refusing to play along with nonsense? Or did they quit because they wouldn’t be part of this nonsense?

Things were not going well:

The talks between Mr. Barr and Mr. Trump and the decision to replace the legal team underscore administration officials’ difficulty in adding a citizenship question to the census. Democrats have criticized the pursuit as an effort to reshape the results of the census – which affects the allocation of hundreds of billions of federal dollars each year – to benefit Republicans.

Mr. Barr said that the Trump administration would soon reveal how it plans to add the question, but he would not detail potential legal pathways.

But something wonderful was coming, just not this:

Mr. Barr declined to say whether the president would issue an executive order to add the question. It was not clear what such an order would accomplish; the Constitution makes Congress responsible for overseeing the census, not the president, though the administration carries it out.

Perhaps it would be best not to do that, because Congress isn’t friendly anymore:

In a warning shot on Monday, Speaker Nancy Pelosi informed colleagues that she intended to schedule a full House vote “soon” to hold Mr. Barr and Commerce Secretary Wilbur Ross in contempt of Congress for defying subpoenas for documents related to the census question. Ms. Pelosi called the census dispute “essential to who we are as a nation” and asserted that the materials in question would “shed light on the real reason the administration added a citizenship question.”

The House Oversight and Reform Committee, which is investigating the Trump administration’s decision to add the question, voted last month to recommend that the two cabinet officials be held in contempt, mostly along party lines, despite protests from the administration that it was working in good faith to meet the requests.

If the House follows through with a contempt vote on the floor – and no date for a vote has yet been set – it would be empowering the Oversight Committee to take Mr. Barr and Mr. Ross to court to ask a judge to enforce their subpoenas. Doing so is an exceedingly rare step and puts a black mark on both officials’ public records.

Those two may not care:

The House has already threatened to hold Mr. Barr in contempt once over a separate case related to a subpoena for material connected to Robert S. Mueller III’s investigation as special counsel. But in the end, lawmakers struck a deal with the attorney general and voted on a resolution that merely authorized them to go to court to enforce the subpoena rather than formally accusing Mr. Barr of being in criminal contempt.

House Democrats intend to go further this time, formally accusing both officials of criminal defiance of their summons if the administration does not relent beforehand, according to a senior Democratic aide familiar with the plans.

Still, the practical outcome could be the same since the Justice Department would almost certainly refuse to bring a criminal case against the men.

Yeah, there is that. Attorney General William Barr is not going to arrest himself. He’s not going to arrest Wilbur Ross either. Ross is a billionaire in his eighties. He might not notice.

This is a bit of a farce, as Slate’s Dahlia Lithwick notes here:

In October, the Atlantic’s Adam Serwer coined what has become the defining phrase of the Trump presidency: “The cruelty is the point.” Those words have been cited to describe the growing national torpor around atrocities taking place at the Southern border, the president’s frightening embrace of autocratic murderers, the decline in public civility, and the rise of vicious tribalism. In so many ways, the cruelty is driving all of it. But there’s another factor at play here, one that’s proceeding on a parallel track. Along with the coarsening and “othering” that mark Donald Trump’s every move, there’s also a compulsion to transform that which was once serious and dignified into small, silly tragicomedy.

Witness what Trump has made of the Supreme Court. The court is an august institution, one that’s drunk, to be sure, on its share of self-congratulatory mythology, but also capable of inspiring awe and reverence for the law and the Constitution and the virtues of logic and civility. Yet within a week of suffering his first major loss at the high court, Trump has turned two centuries of elevated legal thought and studied institutional understatement into a constitutional reality show.

And that means it will be two men facing off against each other once and for all:

In spite of the Supreme Court’s 5-4 decision to prevent a citizenship question from appearing on the 2020 census, and despite the assertions of his own commerce secretary, Wilbur Ross, as well as formal legal promises from his own Department of Justice, Trump has decided he wants to proceed with the question anyhow. With that move, the president has turned the Trump administration’s embarrassing flirtation with deception and incompetence into a standoff between two men. It’s now down to the president vs. the chief justice in a cage match of democratic will.

And in one corner there’s this guy:

In some ways, Roberts brought this upon himself with his split-the-baby opinion, finding both that Ross had constitutional and statutory authority to add the citizenship question but also that, er, no, all the lying about it would not do. As the court’s lone swing voter, Roberts gave himself sole authority to determine if and when the taint of Ross’ lying could be cleansed.

Some observers believed that stain could never be removed, no matter how hard Trump’s cronies scrubbed, and that the administration would stand down, admit defeat, and move on to other priorities. Other smart people argued that the president could still cure the defects of his first attempt, making a new argument that would pass muster. Finally, into the chasm between those two camps lies credible speculation that Roberts may have switched sides at the last minute, as he did in the first Affordable Care Act case. Perhaps the chief had a “dark night of the soul” and sided against the transparent (and racially motivated) lying by the commerce secretary. If that was so, the only lingering question would be whether the swing justice could swing back in time to get the question printed on the 2020 census.

That means that Roberts could save us all:

When the case comes back to the high court, it rests with Roberts alone to put a definitive stop to the practice of using the census to terrorize noncitizens. It would mean refusing to accept the next fake pretext as a defensible one… Even DOJ lawyers have abandoned the pretense that the president is magisterial and learned and should be treated as such in the courts. Now they simply scramble around in his wake, emptying his dirty ashtrays and pretending that stirring up fear and trauma while mobilizing a base isn’t his main goal.

But that could stop:

Roberts could, at minimum, put an end to this presidential temper tantrum, by slamming the door definitively on efforts to work around the court’s ruling. Whether he wants to do that remains anybody’s guess. And that it has come to this is just sad. The mixed signaling from Roberts’ opinion around whether the administration can still cure the pretextual reasoning surely emboldened the president.

So now it seems Trump will have his season finale smack-down with the chief, the man he has never forgiven for his vote in the Obamacare cases. And Roberts, who probably believed he had settled this issue last week, must now decide, again, whether it’s worth his while to let the circus clown tear down the institution he prizes above all things. This is lose-lose for the chief justice, a win-win for the president, and a boon for ratings all around.

This is a reality show, but Politico sees something far more basic:

President Donald Trump’s fight to add a citizenship question to the 2020 census is one he seems likely to lose.

Eleven days after an unfavorable Supreme Court ruling, a new team of Justice Department attorneys must persuade three district court judges that a June 30 printing deadline a previous DOJ legal team insisted had to be met no longer applies – even though, the Commerce Department said last week, the questionnaires are being printed already.

To pass muster with the Supreme Court, the new DOJ team must find a rationale that the high court will rule consistent with regulatory law and also believable – a tough assignment given that the court said in its ruling that the previous rationale was not.

And then there’s that word again:

“It just feels like a farce,” said Vanita Gupta, a former head of DOJ’s civil rights division under President Barack Obama and current president of the Leadership Conference on Civil and Human Rights, which opposes adding the citizenship question. “There are people who view this as the president asking the Justice Department to do unlawful things and to violate and undermine the rule of law.”

The idea that judges will agree to ignore existing evidence in the case, Gupta said, “seems absurd.”

It’s all absurd, and the Washington Post’s Jennifer Rubin adds this:

The administration, you see, just hasn’t figured out what that non-pretextual excuse is. Its position now raises several questions, including: 1) Did the Justice Department lie to the courts to get an expedited Supreme Court hearing by claiming the issue had to be resolved by June 30 and 2) Did the president give the game away when he told reporters the question was needed for reapportionment? As the Post reports, “Trump’s statement could give additional heft to information discovered in May suggesting the administration worked with a Republican redistricting strategist who saw the question as a way to give Republicans and non-Hispanic whites an electoral advantage.”

These details matter:

Ian Bassin, executive director of the nonpartisan nonprofit Protect Democracy, tells me, “There’s a term for trying to create a structural political advantage for ‘Republicans and non-Hispanic whites,’ and that term is ‘white power.’ And we now know that’s been the purpose all along for adding a citizenship question to the census.”

There may be no way around that:

President Trump seems to think that by invoking “executive order,” he can make his legal problem disappear. Wrong. The Supreme Court disallowed the question for now and sent it back for the “real reason” for including the question. He cannot shout “Executive order!” and cure his legal problem.

And there’s this:

We know from evidence belatedly uncovered that the real reason was to produce a census that favored white voters and hence the Republican Party (thereby acknowledging that the party’s political survival is entirely dependent on artificially inflating the white share of the electorate). The government actually tried to halt discovery in a Maryland lawsuit over the census question while it comes up with a new explanation, a cheeky move slapped down by U.S. District Judge George J. Hazel.

They want to keep litigating the real reason for the citizenship question? Fine, let’s have at it.

But that could be dangerous:

Constitutional scholar Laurence Tribe observes, “The district court’s refusal to go along with the antics of the Justice Department’s legal team has been a reassuring reminder that this dictator-admiring president has not yet succeeded in breaking the judicial guardrails completely.”

However, Tribe argues that Trump “has left little doubt about his willingness to do so if he senses at any given moment that it would serve his theatrical or political interests – interests that he seems incapable of distinguishing.”

Now add this:

As Tribe points out, “Among the many things wrong with the government’s disgraceful game is that [the] president has today made absolutely clear that his sole purpose in trying to circumvent the Supreme Court’s recent decision by inserting a citizenship question in the census one way or another is to reduce the political power of areas with a relatively high proportion of noncitizen residents (read: nonwhites) – perfectly lawful residents, despite Trump’s reference to them as ‘illegals.'”

This, of course, amounts to “flatly violating the 14th Amendment’s mandate in Section 2 that such power be allocated among the states in proportion to their actual population.”

And then add this:

The entire debacle raises serious questions about the credibility and honesty of the Justice Department.

“The Trump administration lied to the courts about the real reason for the citizenship question. And they got caught by the Supreme Court,” Mimi Rocah, a former federal prosecutor, tells me. “Now, Trump has directed DOJ lawyers to come up with some other lie. No DOJ lawyer should sacrifice her integrity with the courts for this or any administration.”

Trump’s contempt for the rule of law and blatant dishonesty would not continue without the help of underlings. And they must do some serious soul-searching. “There are some things no DOJ lawyer can do. One of those is to make arguments in court that are untrue in order to benefit the political whims of a president,” Joyce White Vance, a former prosecutor, says. “If DOJ’s leadership, the [attorney general,] the deputy AG, the solicitor general and the head of the Civil Division [don’t want to be] complicit in violating the duty of candor DOJ lawyers owe to the court, then they should resign on principle and in protest.”

They won’t resign en masse, of course, because the professional and ethical expectations have been so diminished in this administration that the unimaginable is now standard operating procedure for both political appointees and career lawyers.

And that’s the real damage here:

The long-term reputation of the Justice Department may be severely damaged by these types of episodes. “A self-respecting DOJ official, whether a political hire or a long-serving civil servant, would resign rather than make arguments that treat the federal judiciary with such disrespect simply to humor the president or his lackey in the office of attorney general,” Tribe observes. Because they have not chosen that course, the next president and attorney general will have their hands full rehabilitating the department and reestablishing professional norms.

As Trump continues to mow down one democratic norm after another and tries to defy Congress and the courts on a regular basis, one has to reevaluate the efficacy and urgency of impeachment. “To refrain from promptly beginning formal impeachment proceedings against a president who conducts his office in this chaotically lawless manner, on top of everything else he has done, would be an abdication of constitutional responsibility,” Tribe asserts.

But that is what is happening, the abdication of constitutional responsibility, but explained so elegantly and plausibly too. And there’s nothing there. This is like grading papers long ago. Some of those really were elegantly empty, from the kids who eventually did become lawyers. And then they became politicians.

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About Alan

The editor is a former systems manager for a large California-based HMO, and a former senior systems manager for Northrop, Hughes-Raytheon, Computer Sciences Corporation, Perot Systems and other such organizations. One position was managing the financial and payroll systems for a large hospital chain. And somewhere in there was a two-year stint in Canada running the systems shop at a General Motors locomotive factory - in London, Ontario. That explains Canadian matters scattered through these pages. Otherwise, think large-scale HR, payroll, financial and manufacturing systems. A résumé is available if you wish. The editor has a graduate degree in Eighteenth-Century British Literature from Duke University where he was a National Woodrow Wilson Fellow, and taught English and music in upstate New York in the seventies, and then in the early eighties moved to California and left teaching. The editor currently resides in Hollywood California, a block north of the Sunset Strip.
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1 Response to A Constitutional Reality Show

  1. Rick says:

    I think the secret password that Chief Justice John Roberts is asking the administration to figure out before he’ll let them include the citizenship question on the census form is, “Open, Sesame!!!”

    But to make sure it works, they’ll need to say it really, REALLY LOUD!!!

    (Or was it “ Rumplestiltskin”? I forget.)

    My problem with this SCOTUS decision is that Roberts has turned a court case into some sort of children’s fairy tale.

    Instead of giving the White House another chance at coming up with a more believable rationale, he should just be saying “No!”, followed by, “You have failed to explain why this thing should be done — and by the way, there is at least one obvious reason it should not be done. End of story. Go away.”

    Their argument needed, from the get-go, to include both (a) an explanation of the problem that they seek to solve, and (b) an explanation of their proposed solution to the problem.

    Furthermore, these two things need to be presented concurrently! — not making the solution independent of some non-existent, random, last-minute, thunk-up-out-of-thin-air problem — or maybe some possible unconnected explanation that some parallel White House might have accidentally concocted in an alternative universe. The Chief Justice shouldn’t be hinting that he might be open to changing his mind, depending on whether Trump’s team can come back in a few days after having captured some wicked witch’s broom.

    Another meme for what Roberts is doing — as if one is needed — might be that of the headmaster of the local university, in a quiet room, reluctantly retesting the star football player on his botany final, hoping, along with the whole student body, that this clueless thug, who happens to have bean-dip where his brains ought to be, can finally pass the course, thus allowing him to play in, and indeed win, the state championship game this coming Saturday, and by so doing, also saving the institution from the wrecking ball.

    As engaging as all of this is, I’m tired of living in a drawn out Hollywood fantasy. Can’t we just go back to the boring old days of not having to pay so much attention to all this crap?

    Rick

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