Once again, Chief Justice John Roberts has overstepped his bounds and arrogated to himself the imagined authority to be chief lawmaker for the United States of America.
Roberts cavalierly rejected the president’s inclusion of a citizenship question on the census even though Roberts admitted its inclusion is perfectly constitutional. He rejected the question because the president’s reasoning for including it seemed “contrived,” and demanded a “better...explanation for the action taken in this case.”
He essentially said that what you want to do is permissible under the Constitution (he had to say this since citizenship questions have been on the census since 1820), but you’re going to have to come up with a better reason than “voting rights” to exercise your constitutional prerogative to ask folks about citizenship.
Worse, Roberts has invented a completely unprecedented legal principle: you can do something absolutely legal and constitutional, and I can still punish you if I don’t like what you were thinking when you did it. This is dangerous to a staggering degree.
This is nuts. It is craziness, lunacy, an utter perversion of justice and constitutional jurisprudence.
Let’s not forget that Roberts was the one who famously said during his confirmation hearings that his job was just to be a neutral umpire who follows the rule book and calls balls and strikes without taking sides. But what Roberts did in the census case is like an umpire telling the pitcher, “Yeah, that pitch split the strike zone, but I’m going to have to call it a ball because I don’t like your motivation for playing baseball. You’re just in it for the money, instead of the joy of the game, so that’s ball four instead of strike three.”
As Thomas Jefferson famously said (emphasis mine), “[T]he legislative powers of government reach actions only, and not opinions.” The law is concerned with conduct, with behavior, and not with thoughts and motives and opinions. What Roberts has done here is monstrous.
Who is going to stop him? The only one who can is President Trump. The president should simply direct the Commerce Department to add the citizenship question to the census no matter what that would-be judicial tyrant says. The justices have zero constitutional authority to meddle with the Constitution under any circumstances and have no ability to force the president to comply with anything they say. Like the pope of old, John Roberts has no divisions.
Here’s what the Constitution says (emphasis mine): The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct.
Here is what the law, passed by Congress in 1980, directs (emphasis mine):
The Secretary (i.e., of the Commerce Department) shall prepare questionnaires, and shall determine the inquiries, and the number, form, and subdivisions thereof, for the statistics, surveys, and censuses provided for in this title. [13 U.S. Code § 5]
Well, the Secretary (Wilbur Ross) has done his job. He has prepared the questionnaire and its “inquiries,” which include an “inquiry” regarding citizenship. All perfectly legal, all perfectly constitutional. Even Barack Obama asked the citizenship question on the long form of the census when he was president. In fact, the question that Trump has directed the Secretary to include is exactly the same as the one Barack Obama used.
The census is to be governed by laws passed by the legislative branch (Congress) and implemented by the executive branch (the Commerce Department, under the direction of the President). There is no role for the judiciary here at all.
Article III of the Constitution lists the kinds of cases and controversies the Supreme Court is even permitted to take up. Adjudicating questions about the census is not among them. If the American people don’t like the way the president is managing the census, the solution under our form of government is to elect a different president, not to go running to the Supreme Court every time they don’t get what they want.
It’s not the president who is trashing the Constitution and the rule of law here, it’s the Supreme Court. The president never took an oath to do whatever the Supreme Court says. He took an oath to uphold the Constitution and to see that the laws are faithfully executed. The only way he can do that is to ignore John Roberts. And he needs to do that, starting today.