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126 Pages of Legalese: How Trump Can’t Win in Court

American law is infuriatingly convoluted.

Yesterday, a federal judge in California ruled that the Trump Administration may not include a question regarding citizenship in the 2020 census.

The Hill says that this is the second federal judge to block this census question from moving forward.  Another federal judge refused to grant an injunction back in February. 

This latest decision is a flurry of jargon meant to go over the heads of average Americans. Some cases are going to be more technical than others, yet this one appears to be the perfect example of obfuscation.  It covers all bases, masks them in legalese, and then reaches a desired result.

I will address several main points from the decision.  My goal is to evaluate the law based on common sense.

Here are the points that I will discuss:

  • Standing.
  • Data.
  • Procedural Protections.
  • Legitimate Concerns. 

The first issue we approach is the matter of standing.  The plaintiffs are various groups, states, and local organizations.  The judge explains that the plaintiffs must be able to show some conceivable harm from the proposed change.  And guess what! He finds they have standing.  His reasoning?  States and organizations could lose federal money if the census results in a lower count.  This type of harm is idiotic.  Large liberal states are going to lose population anyway.  Does that harm mean they can sue to stop the census from being taken at all? It also implies that there is an inherent right to that federal money that might be lost. He also says that the groups may suffer harm because they fear answering that evil question about their citizenship.  For as intangible as that is, it is refuted by the simple fact that US law does not permit individuals to lie on the census or neglect to answer the census. In addition, the census is kept confidential and may only be used for statistical purposes; negating the fear that answering “no” to “are you a citizen” will result in ICE showing up at one’s door.  The census does not differentiate between classes of aliens, only citizen and non-citizen.

The second issue is the court’s use of data. Seeing as the census has not been conducted yet, the court relies on professional speculation relating to the effects of including this question.  He cites the credible testimony of experts x, y, and z who refuted the claim of the federal government that including the question was necessary.  This type of bickering over the record is pointless.  While the Administrative Procedure Act does not want the federal government promulgating federal rules and regulations detached from reality, that shouldn’t apply when data sets or conclusions are debatable.  Imagine this scenario…The EPA says some environmental regulation is needed to protect species X.  Turns out species X is extinct.  That is no longer a good reason to have the regulation.  They aren’t quibbling as to whether the species is endangered or vulnerable based on the expert testimony of biologists and zoologists with different conclusions.  Anyone can produce data that supports their cause.  There was a time when courts deferred to the opinion of the executive in matters that were solely within the executive’s authority.

The third issue is how the APA restricts changing regulations.  I wrote previously on the judiciary’s reliance on the “arbitrary and capricious” standard found in the APA and what baffled me then was how courts were so willing strike down a perfectly acceptable policy change because the administration didn’t say the magic word.  The action was permissible, but the court didn’t like how the administration tried to defend it.  And then once they didn’t like the reasoning, they did not permit the administration to offer an acceptable reason. Section 141 of subchapter II of Chapter 5 of Title 13 of the US Code says “The Secretary shall, in the year 1980 and every 10 years thereafter, take a decennial census of population as of the first day of April of such year, which date shall be known as the “decennial census date”, in such form and content as he may determine, including the use of sampling procedures and special surveys. In connection with any such census, the Secretary is authorized to obtain such other census information as necessary.” And Section 4 of subchapter I of Chapter 1 of Title 13 says “The Secretary shall perform the functions and duties imposed upon him by this title, may issue such rules and regulations as he deems necessary.”  These two provisions imply a strong sense of deference to the decisions, reasoning, and determinations made by the Department of Commerce.  Wilbur Ross can deem something “necessary” and because this federal judge doesn’t like it, he’ll call it “arbitrary and capricious” and block it.  Nevermind that the census is something prescribed by the constitution itself. We also know from the history of the census that the inclusion of citizenship related questions is not out of the ordinary. Texas Attorney General, Ken Paxton, wrote an op-ed last year regarding the outrage over this question. He says, “The citizenship question recurred multiple times from 1820 to 1890. And from 1890 to 1950, it appeared on every census. Since then, it has been included on every long-form census questionnaire from 1970 to 2000. To this day, the question is still asked on the American Community Survey, an annual supplement to the decennial census. The citizenship question is not a new concept; it is the restoration of common sense.” He then adds, “It is worth noting that the citizenship question does not ask about a person’s legal status; it merely asks about citizenship status and thus has nothing whatsoever to do with immigration enforcement. In fact, federal law prevents census data from being used for anything other than statistical analysis. That is the law and there is no evidence any agency intends to violate it.”

The last issue worth noting is actually a legitimate concern. Upon reading through Title 13, which governs census taking, it is obvious that there is a process that the secretary has to follow in preparation for the actual census.  He must report certain things to congress years in advance.  When Secretary Ross did this, the citizenship question was not present in the report.  He may try to amend it with a new reason, but the judge admits that this might be a problem for congress to address, not the courts, though he certainly thinks he can review parts of it.

My advice to you is to avoid reading this ruling while operating heavy machinery.

Eschewing any additional analysis of this lengthy decision (mostly because I might get lost), I will address the simple concerns I have as an American citizen.

It has become apparent that law is not serving the interests of the people. We accept gridlock in government because separation of powers and checks and balances promote it.  I get that, we should be okay with that.  It is a feature of our system.  But law has turned into a useful cage, meant to incapacitate opponents of liberal policy. Every conceivable reason to block a rational and common sense policy will be found by judges, grievance groups, and liberal state attorneys general.

I favor a simplistic understanding of what powers the federal government has. The census is mandated by the constitution.  Pursuant to that, congress has delegated the task to the commerce department, affording it latitude to carry out that task.  It involves interaction between the two political branches of government.  The judiciary comes in and asks if it was invited.  Before either political branch can answer, the judiciary responds to its own question “good, now let me tell you what you are doing wrong.”

The entirety of this issue comes from a legislative reaction to FDR’s expansion of the federal government.  It made sense to put procedural protections in place when the government began regulating everything.  But this isn’t the TVA or the Social Security Administration.  This is a function of the federal government that has been defined since 1790. 

The federal judiciary itself is being arbitrary and capricious in its constant reliance upon the APA.  And since the APA is not a founding document, etched in stone since time immemorial, it is fitting that we embrace a more current view of the act. Liberals would be horrified if we embraced a “living-APA” similar to their “living-constitution” shtick.

Congress has a little known power called “jurisdiction stripping.” The constitution granted congress the authority to create inferior courts and to define their jurisdiction.  Every statute passed by congress may preclude the federal courts from reviewing actions or claims arising from a certain provision of a bill.  Of course, congress cannot prevent lawsuits from reaching the Supreme Court if they are in the court’s original jurisdiction.

This is by no means an expansive explanation of this case, but this ruling has been described as “judicial malpractice” and is worthy of our ire.

The solution is simple. Congress can tell the federal courts to get lost.  Though that is extremely unlikely now. And it is increasingly likely that the Trump Administration will be bound up in constant lawsuits.

Trump could always take the Jacksonian route…

Check out this article on a previous census question lawsuit.

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