Article II of the Constitution begins with the words “The executive Power shall be vested in a President of the United States of America.” These words have always carried great weight, but they have taken on new meaning in the current administration.
Just a year ago the Supreme Court ruled, in Trump v. Hawaii, that President Trump had a “rational basis” for banning the entry of “aliens” from certain countries. Justice Sonia Sotomayor, in dissent, argued that the President’s supposed basis was a pretext, but according to Chief Justice John Roberts, federal immigration law “exudes deference” to presidential power. He was willing to take the President’s word for it.
On June 27, 2019, the Court once again examined the extent of executive power and the role of the Court in reviewing Article II conduct. The case was Department of Commerce v. New York, better known as the “Citizenship Question” case. The issue was whether the Secretary of Commerce, Wilbur Ross, could add a question about citizenship to the 2020 census form. The Court, by the barest of margins, ruled that he could not – or, more precisely, that he could not do it based on a reason clearly fabricated out of whole cloth.
Once again, Chief Justice Roberts wrote the majority opinion, a 29-page mishmash of legal technicalities and shifting alliances among the Court’s members. It is so complicated that you need a roadmap, or better yet GPS, to get from beginning to end.
We should be glad that at least the Court decided the case at all, something it declined to do that very same day in Rucho v. Common Cause, the partisan gerrymandering case. Justices Samuel Alito and Neil Gorsuch, would have had it otherwise, however. In their view, the Executive Branch, in the person of Secretary Ross, has unlimited power over the census, and the Court has no business “sticking its nose” where it doesn’t belong,
Notably, the Court’s other three conservatives (Roberts, Clarence Thomas, and Brett Kavanaugh), along with the four liberals, voted for in favor of deciding the case, so Ross and, by extension, Trump, could not escape judicial scrutiny. This notion of giving the Executive “carte blanche,” were it to prevail, would essentially allow government by pretext. In the long run, the ruling that Ross’s actions were subject to judicial review may be the most important part of the case.
Ross claimed that he was adding the citizenship question because the Department of Justice (DOJ) had asked him to do so, the better to enforce the Voting Rights Act. During the trial in a New York federal court, however, the evidence established that the DOJ didn’t exactly come up with this idea on its own. From the first day of the Trump administration, Ross was determined to get this question on the census form, and he contacted the Attorney General looking for someone to write him a letter requesting it. Maybe Ross was thinking of that long-ago song, “I’m Gonna Sit Right Down and Write Myself a Letter (and Make Believe it Came from You”) from the play “Ain’t Misbehavin’.” The Roberts opinion doesn’t mention the song but implies as much by telling us that the letter “drew heavily on contributions from Commerce staff and advisers.”
The Chief Justice agrees with the Government that the Secretary has “broad authority.” So it would be one thing if Ross had advanced a legitimate reason, even one based on political considerations, but “the evidence tells a story that does not match the explanation the Secretary gave for his decision.” That is a polite way of saying “he lied.”
Unwilling to take Ross’s word for it and stomach such deceitful conduct by the executive branch, Roberts crossed over and became part of the majority, joined by Justices Stephen Breyer, Ruth Bader Ginsburg, Elena Kagan and Sotomayor. “Reasoned decision-making,” he wrote, requires an “explanation,” not a “distraction.”
The various opinions in this case show, once again, that the Supreme Court is hopelessly splintered. In a rational world, upholding Ross’s shenanigans would have been unthinkable. But four of the nine Justices found it not only thinkable but perfectly acceptable. Justice Thomas, joined by Gorsuch and Kavanaugh, went so far as to chastise the majority for questioning Ross’s “sincerity,” lamenting the “din of suspicion and distrust” that typifies modern discourse.
In May, a few weeks after the argument but before the decision was announced, new information surfaced showing that a recently-deceased Republican redistricting consultant had originally come up with the idea of the citizenship question as a way of helping elect Republicans in future elections. So much for enforcing the Voting Rights Act. And no wonder there is “suspicion and distrust.”
One might ask whether Chief Justice Roberts has acted inconsistently, voting one year to uphold the travel ban and voting the next year to kibosh the citizenship question, both put forward on questionable bases. I have no answer, other than to say that the cases raise quite different Article II questions. But I remain thankful that the Chief Justice takes each case on its own and sees no conflict between adhering to conservative principles, on the one hand, and upholding the rule of law, on the other. The American public deserves no less.