June 27, 2019

"ROBERTS, C. J., delivered the opinion for a unanimous Court with respect to Parts I and II, and the opinion of the Court with respect to Parts III, IV–B, and IV–C..."

"... in which THOMAS, ALITO, GORSUCH, and KAVANAUGH, JJ., joined; with respect to Part IV–A, in which THOMAS, GINSBURG, BREYER, SOTOMAYOR, KAGAN, and KAVANAUGH, JJ., joined; and with respect to Part V, in which GINSBURG, BREYER, SOTOMAYOR, and KAGAN, JJ., joined. THOMAS, J., filed an opinion concurring in part and dissenting in part, in which GORSUCH and KAVANAUGH, JJ., joined. BREYER, J., filed an opinion concurring in part and dissenting in part, in which GINSBURG, SOTOMAYOR, and KAGAN, JJ., joined. ALITO, J., filed an opinion concurring in part and dissenting in part."

That's the line-up on Department of Commerce v. New York, a case that promises to be difficult to read. But the easy take away is that the Court was unanimous. Unlike the non-unanimous case I just spent an hour and a half writing about, it doesn't do something big, clear, and final. It's all fractured. And I need a break.

So let me just dish up Amy Howe's "Opinion analysis: Court orders do-over on citizenship question in census case." Excerpt:

Although the Trump administration had hoped that the Supreme Court would clear the way for [the census] to include [a citizenship question], the justices instead sent the issue back to the Department of Commerce. Chief Justice John Roberts joined the court’s four liberal justices in ruling that the justification that the government offered at the time for including the citizenship question was just a pretext. The decision left open the possibility that the Trump administration could try again to add the citizenship question, but the clock is ticking....

In an opinion by Chief Justice John Roberts, the court today explained that... it was reasonable for [Secretary of Commerce Wilbur] Ross to decide to use the citizenship question instead of the administrative records. And it was also reasonable for him to decide that it would be worth it to include the citizenship question even though it might result in a lower response rate from households with residents who are not U.S. citizens.

But the district court had also ruled that Ross’ rationale for including the citizenship question – that the Department of Justice had asked for the data to better enforce federal voting-rights laws – was a pretext for its actual reasoning, and here the court agreed. “The evidence showed,” Roberts wrote, that Ross “was determined to reinstate a citizenship question from the time he entered office; instructed his staff to make it happen; waited while Commerce officials explored whether another agency would request census-based citizenship data; subsequently contacted the Attorney General himself to ask if DOJ would make the request; and adopted the Voting Rights Act rationale late in the process.”...

Justice Clarence Thomas filed an opinion concurring in part and dissenting in part. In his view, the Supreme Court’s “only role in this case is to decide whether the Secretary complied with the law and gave a reasoned explanation for his decision.” Because the “Court correctly answers these questions in the affirmative,” Thomas argued, that “ought to end our inquiry.”

The court’s four liberal justices joined Roberts in agreeing to send the case back to the Department of Commerce, but Justice Stephen Breyer also filed an opinion that was joined by Justice Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan. They maintained that, even if Ross’ decision to add the citizenship question wasn’t pretextual, it still violated the federal laws governing administrative agencies because he decided to ask the question even though all of the evidence “indicated that asking the question would produce citizenship data that is less accurate, not more.”

Justice Samuel Alito also filed an opinion concurring in part and dissenting in part...” He would have ruled that the decision to add the citizenship question to the census fell within the discretion of the Department of Commerce and could not be challenged at all.

160 comments:

Achilles said...

Why are non-citizens counted for representation?

Why are democrats, for the last 200+ years, so desperate to represent people that can't vote?

narayanan said...

Can they still do it for next year censur or do we have to wait 10 years when Ivanka is President.

Ann Althouse said...

"Why are non-citizens counted for representation?"

Same reason children are counted. And non-voters (like religious abstainers). And 3/5s of slaves (in slavery days). And women, back when women were denied the vote. They're there and they get representatives, but they don't participate in choosing them.

narayanan said...

The **battle cry** was
"no taxation without representation"

and not

"no representation without taxation"

Not an oldster. said...

This is the case we were waiting on that has the potential to affect the face of the nation for years to come...

I hope Trump's administrators delay printing the forms without the question, and make the easy legal case that a nation can count their citizens.

Damn SCOTUS punters: dock all their pay for not doing their jobs...

Still there is time, legally, to make the case for asking that question. The printers will just have to work overtime after the Trump admin forces justice Roberts' umpiring team to make the damned call already...

(Never surrender. Never, never, never.)

Mark said...

the easy take away is that the Court was unanimous

No it wasn't.

Michael K said...

They're there and they get representatives, but they don't participate in choosing them.

So, if I break into your house, I am a resident ?

Achilles said...

So the court said that the commerce department had legal and constitutional authority to include the question, which is obvious.

But 5 of the god priests made up a pretext that the commerce department needed a better reason to include it and sent it back to the District court. There an obvious democrat hack blocked the question for political purposes.

They know this effectively blocks the question from the census because of schedules. The courts will just withhold judgment until 2021.

These people are corrupt charlatans. Roberts is too obvious as a plant. Bush knew who he served.


Not an oldster. said...

Professor,
We can count non-citizens for the reasons you described AND also count how many legal citizens reside in each region.

That is valuable public information for many groups and reasons, which is why our country collects such data.

#AskTheQuestion

Mark said...

It was unanimous about the case history and on jurisdiction. That's it. On the substance of the case, it was divided, with Roberts offering a Roberts-like weasel opinion that asking about citizenship is permissible, but remanding because.

Because why? Because the Secretary didn't explain himself well enough. Or something.

Ann Althouse said...

This is good for Trump.

Must I spell out why?

narayanan said...

From AA earlier post ...

The Framers were aware of electoral districting problems and considered what to do about them. They settled on a characteristic approach, assigning the issue to the state legislatures, expressly checked and balanced by the Federal Congress.

Can the gerrymander be such that the electoral rolls are substantially equal in each district? Are they already fulfill that metric.?

Birkel said...

George W Bush made terrible judicial appointments.

CJinPA said...

“The evidence showed,” Roberts wrote, that Ross “was determined to reinstate a citizenship question from the time he entered office; instructed his staff to make it happen; waited while Commerce officials explored whether another agency would request census-based citizenship data; subsequently contacted the Attorney General himself to ask if DOJ would make the request; and adopted the Voting Rights Act rationale late in the process.”...

Does the court usually demand to know so thoroughly the details of how a policy came to be? Did they read emails, etc.?

They maintained that, even if Ross’ decision to add the citizenship question wasn’t pretextual, it still violated the federal laws governing administrative agencies because he decided to ask the question even though all of the evidence “indicated that asking the question would produce citizenship data that is less accurate, not more.”

Counting citizens makes citizenship data less accurate? It makes the important part of the count more accurate.

Not an oldster. said...

A good printer can churn out those forms needed for the March rollout if a decision is reached by October.

Importsnt legal issues like this should not be determined by printers' deadlines, Mr. Chief Justice.

Do your job, because the nation is simply not going to accept another NON-call from our umps. The consequences to the current ground game in the country are simply too great...

What a great political issue the nation has just been handed if only we open our eyes and see it:

Does a nation have the legal ability to count it's citizens or not? The Roberts got never got there... Yet!

Ice Nine said...

>>Ann Althouse said...
This is good for Trump.
Must I spell out why?<<

Uh, yeah.

Not an oldster. said...

Re. GWB nominating JR as Justice And Chief: never send in a boy to do a man's (or woman's) job, and I mean that for the both of them...

Maybe JR would like a nice buy it package and to spend more time with his family because he sure is not embracing the substance of his job. Damn punter.

Not an oldster. said...

buy out

Bay Area Guy said...

Roberts is pretty spineless on some of the tougher decisions.

But he stood tall in Janus (public employee union dues), so there's that.

This is another easy question. Ask what you want on the Census, no need for SCOTUS intervention.

Bay Area Guy said...

Thomas, as usual, is great, and Kavanaugh and Gorsuch were with him -- so that's encouraging.

Achilles said...

Ann Althouse said...
"Why are non-citizens counted for representation?"

Same reason children are counted. And non-voters (like religious abstainers). And 3/5s of slaves (in slavery days). And women, back when women were denied the vote. They're there and they get representatives, but they don't participate in choosing them.


You obviously dodged the question for obvious reasons. All those other people are/were citizens.

Non-citizen are not intended to be counted for representation.

Democrats are always looking for people to represent that cannot vote.



Mr. D said...

Ann Althouse said...
This is good for Trump.

Must I spell out why?


He'll enjoy having the bloody shirt to wave.

Richard Dolan said...

AA says this ruling is good for Trump. As it turns out it is also a bit dangerous for those who wanted it.

The reality today is that Dems generally and lefties specifically rely on admin agencies to enact an agenda that they cannot achieve legislatively. For the same reason, Reps generally and righties specifically are often challenging the decisions of admin agencies, and attack doctrines such as Chevron that can insulate admin decisionmaking from judicial review.

Today's decision opens an additional avenue to attack admin decisionmaking, using the 'pretext' idea that CJ Roberts and the four Dem justices used to invalidate (for now) the citizenship question on the census. I can easily see that argument being used in future environmental cases (such as the current attacks on oil companies for 'denying' climate change) where there is lots of politics behind the admin decisions at issue. And it won't be hard for those wanting to use the 'pretext' rationale to find an ideologically disposed district judge willing to run with that idea.

I expect the spin on this decision will be that CJ Roberts was trying to play both sides against the middle, in seeking the least intrusive way to rule while not appearing partisan. Perhaps. But another frequent comment about him is that he plays the long game.
If undermining the power of the administrative state is the long term goal, this is a step in that direction, and if followed up, can become a powerful check on admin agencies.

As they say, beware what you wish for.

John Borell said...

Ann Althouse said...
This is good for Trump.

Must I spell out why?


He'd obviously rather have the issue; it resonates with a majority of voters in battleground states.

Achilles said...

Ann Althouse said...
This is good for Trump.

Must I spell out why?



We don't care if it is good for Trump.

We care if it is good for the country.

You leftists never seem to get this. But you were conned into voting for Obama and for voting for Romney so I guess we have to take that into account.

rcocean said...

That was the R's big mistake in 1870, they decided to give blacks the right to vote when they had no intention of enforcing it. Result: The White South had blacks counted when determining Congressman and Electral Votes even though they were forbidden to vote. In some deep south districts you have 1 white Congressman being elected in a district that was 60% black.

Anyway, its too late now, but the congressional reps and EV should have been based on eligible voters - not total number of bi-peds.

narciso said...

This is a key function of the federal govt, not climate change, the census has become a data dump of other extraneous info they haven't any right to.

Ken B said...

Althouse's answer about why non citizens should count is wrong. She cites three classes, children, women, slaves. The first two are and always have been citizens. Slaves were non citizens (per Dred Scot) counted due to an explicit clause in the constitution. Thus none of the three classes is precedent for counting non citizens.

rcocean said...

I think the decision is outrageous. Its just federal judges wanting to stop the counting of Illegal aliens so the D's can get more votes. And to disguise how much of their electoral votes and Congessmen are based on illegal non-citizens.

anti-de Sitter space said...

Is this the thread where we say it's good to subvert the votes of citizens re government representation.

Temujin said...

I was going to comment the same as Achilles: Are non-citizens intended to be counted for representation?

Is there any other country on earth that would count non-citizens- legal or illegal aliens- as part of their citizenry to be represented? Could I go to France, and just hang out a few extra months and be counted as part of their census? I'm asking honestly if anyone knows if this happens elsewhere.

cubanbob said...

"Why are non-citizens counted for representation?"

Same reason children are counted."

We do count resident aliens. We don't count tourists. Illegal aliens are essentially untaxed Indians. They should not count.

Murph said...

At Patterico, Beldar suggests that the core question has been answered & left to be re-submitted is merely an acceptable [to SCt.] justification.
Beldar comments, "But they know who they have to satisfy, and it happens to be the Chief Justice, and the big question — may the citizenship question be asked? — has already been answered in the affirmative by him and the other four conservative Justices."

Bay Area Guy said...

"At Patterico, Beldar suggests that the core question has been answered & left to be re-submitted is merely an acceptable [to SCt.] justification."

Beldar used to comment here a lot, but then he got all butthurt over Trump and Trump's good policies and Trump's winning politics, so he left in a huff.

Mike Sylwester said...

The title of a blog article should indicate the subject of the article.

Do you intend to provide such absurd titles for all your future articles about Supreme Court decisions?

tim in vermont said...

Is this the thread where we say it's good to subvert the votes of citizens re government representation.

That would be your position. Our position would be that it’s good to NOT subvert the votes of citizens.

Leland said...

Yeah, I get to post twice, because I foolishly thought a post on SCOTUS ruling meant the topic was about SCOTUS ruling, not realizing that another post would come and make the topic more narrow and I'd be out of order.

Roberts claim is that Ross's argument was just pretext, because he held a position of adding the question to the census before the official justification was made. Isn't that how politics is supposed to work? You announce your intention, get appointed because of your intents, and then you carry out your intent by writing it into regulation/law? Rather than the politics in which an official says, "I want border security, but I don't want any laws, I write related to securing our border, enforced"?

I agree with Thomas. If the question is whether Ross has the authority to ask the question, and he does according to SCOTUS; then why is that authority constrained to action taken after getting all the data? Why can't the Secretary have a decision first, get data that verifies his decision, and than carry out his authority?

I actually prefer to agree with limiting the power of Executive Branch to write regulation. I prefer that be constrained to Congress, but that wasn't the case or decision here. Instead, the Judicial Branch recognized the Executive Branch authority to act as granted by Congress but added a judicial review requirement that, in another case announced today, they said was beyond their right to do. This affirms Executive Branch authority with a process for the courts to decide the honesty of political intent.

As for the advantage to Trump; sure his supporters will want to keep him until 2024 to help find replacements to offset Roberts. But in the meantime; California and New York will be able to plant new voters to farm for 2024. If Trump had won the case, his supporters would still be equally energized to vote for Congress' failure to secure our border.

The Godfather said...

At the time the Constitution was written, there was no worry about illegal immigrants, because there were (virtually) no laws restricting immigration, and the situation was the same when the 14th Amendment was adopted. If we were to amend the Constitution today, we might address the issues differently. I’d favor an amendment to limit birthright citizenship. But it’s very hard to amend the Constitution, so we’re probably stuck with what we’ve got. And that means that non-citizens get counted in the Census, and if you want to reduce their influence you’ll have to be sneaky about it - sneakier than this.

Nonapod said...

Technically I don't believe that slaves were ever considered citizens. As everyone knows, the history of the 3/5th compromise was that the slave states wanted to inflate their apportionment of representatives, residential electors, and direct taxes with such non-citizens.

It's a shame that there was never an amendment passed that (at the very least) spells out that non legal residents can not be counted for representation. Now such an amendment will never happen since the current status quo benefits one party so greatly.

tim maguire said...

Everyone seems to agree that the citizenship question will reduce compliance with the census questionnaires.

Is there any evidence for this? And, if so, is it the same evidence that shows the DNC computers were hacked?

Sigivald said...

even though all of the evidence “indicated that asking the question would produce citizenship data that is less accurate, not more.”

...

How does it do that, exactly?

(The census produces NO citizenship data at all right now, does it? How do you get less accurate than "no data" by ... asking people a question?

Sounds a lot more like "produces data the Justice doesn't like".

And indeed, I looked up the opinion, and his reasoning for "less acurate citizenship data" is unshown; he just says the evidence shows it, but frankly I trust Breyer as far as I can throw him.

His stated argument that precedes that and is in my estimation his real objection is that not counting illegals would cause some states to lose a representative.

Which might well be true, though the Constitutional argument that they Must Be Counted is murky, and as always Breyer is not clarifying.)

James K said...

They're there and they get representatives, but they don't participate in choosing them.

Except in California, de facto, and in New York, soon to be de jure, where even illegals will be able to vote.

tim maguire said...

Murph said...
At Patterico, Beldar suggests that the core question has been answered & left to be re-submitted is merely an acceptable [to SCt.] justification.


It was a weird, dumb decision. Alito is right--if the Commerce Dept has the right to add the question, that is the end of the inquiry. The SC has no business deciding if the stated reason was sincere enough for their fragile sensibilities.

But, of course, Roberts has to have it both ways by sending Ross home to come up with a better lie.

James K said...

The printers will just have to work overtime after the Trump admin forces justice Roberts' umpiring team to make the damned call already...


Printers? What the hell? 90% of the population is able to and would prefer to fill out an online form.

I think Roberts just hates Trump and enjoys sticking it to him.

Lucid-Ideas said...

It's official.

'Citizenship' is masturbation. It's just going through the motions.

Census is masturbation
Taxes are masturbation
Voting is masturbation
The law is masturbation...you're just going through the motions.
Borders are masturbation

There's no amount of lipstick you can put on this pig of a decision.

Hell, I'll wear some too. I like to get kissed before I get FUCT.

anti-de Sitter space said...

'Our position would be that it’s good to NOT subvert the votes of citizens (exceptions: DC/territories/vote-veto-via-dirt(i.e. gerrymandering/Senate)).'

Murph said...

Bay Area Guy said...
6/27/19, 12:55 PM


...and?

As my long-departed mother used to say, "What does that have to do with the price of eggs?"

bleh said...

Section 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State

This is why it is important to gather accurate data about how many citizens live in each state.

Left Bank of the Charles said...

Why can't Trump offer these rationales:

Because I want to know how many people in the U.S. are citizens and how many are not, so that I can say that my statement about losing the 2016 popular vote only due to illegal immigrants voting is not a lie.

Because I want people who are in the U.S. who are not U.S. citizens and not legal residents to leave.

cubanbob said...

In one decision the gerrymandering decision, the Court ruled it was a political decision and not justiciable. How is a decision that is inherently political, the citizenship question, be any different? Did Ross act outside of his scope of authority? No. So what difference does his motivation matter? I find a bit of a stretch to believe an illegal alien will fill out a census form that doesn't ask about citizenship status but won't fill one out that does. No doubt that demographers and statisticians can use the data of how many foreign tourists come and go into the country every year and from there they can determine how many foreign tourists for example are in New York City and Los Angeles on average every day of the year. Then use that number for voting district purposes. That would give NYC and LA even more districts. If this isn't acceptable, and those people are here legally, then why would counting illegal aliens be acceptable?

Carol said...

He'll enjoy having the bloody shirt to wave.


But it's his Court now isn't it?

Or not yet?

Left Bank of the Charles said...

... He can't because the truth about why he want to add the question is a loser.

Anonymous said...

Hello my friends
Is everybody happy?

Nonapod said...

The theory is that if census takers ask the question, it would either scare illegal away from census takers since they would be afraid to be deported or they would lie for the same reason. Of course it's all just supposition. There's no evidence one way or another on how illegals would actually behave. In states like California, given the general attitudes of elected officials, bureaucrats, apparatchiks, the media, and the many in the electorate have towards stuff like deportation and ICE and sanctuary cities, it's at least feasable that many people in the illegal community would feel little fear of deportation anyway.

Lucid-Ideas said...

I believe I should apologize for my words and my behavior in the previous post. Sorry. My blood was up (kind of still is).

I will attempt to do better and be a good 'untaxable indian' of this blogging community...

The Vault Dweller said...

Are illegal aliens supposed to be counted in the census? I get counting resident legal aliens, but why illegal aliens?

Lucid-Ideas said...

@Althouse

Must I spell out why?

I too would like to hear your thoughts on this, although I'm less concerned about 'what is good for Trump' than what is good for the nation.

Hagar said...

All the others were people the states were required to care for. There is no reason for them to care for non-citizens; thus no reason for allocating them money for it. In fact it is wrong to do so.

Achilles said...

James K said...


I think Roberts just hates Trump and enjoys sticking it to him.

No.

Roberts was always a globalist tool. He hates Trump but that is not what drives him. Roberts just serves his masters.

rehajm said...

Cool how we hire the justices for the law and we get the mind reading for free!

Mike Sylwester said...

But the easy take away is that the Court was unanimous.

Justice Clarence Thomas filed an opinion concurring in part and dissenting in part. In his view, the Supreme Court’s “only role in this case is to decide whether the Secretary complied with the law and gave a reasoned explanation for his decision.” Because the “Court correctly answers these questions in the affirmative,” Thomas argued, that “ought to end our inquiry.”

Justice Samuel Alito also filed an opinion concurring in part and dissenting in part...” He would have ruled that the decision to add the citizenship question to the census fell within the discretion of the Department of Commerce and could not be challenged at all.

Essentially, ruling was not unanimous.

Nonapod said...

I get counting resident legal aliens, but why illegal aliens?

Traditionally a census is just counting how many people there are in an area. It's supposed to be apolitical, it's literally just asking "How many people are there living here". But of course the data itself is used for all sorts of political purposes, the most notable one being apportionment of representatives. And apportionment is determined by counting all the people, not just citizens.

Obviously it's hugely debatable whether this is a good way of doing things.

Mr Wibble said...

How is a decision that is inherently political, the citizenship question, be any different? Did Ross act outside of his scope of authority? No. So what difference does his motivation matter?

The issue is the APA and its requirements.

The APA instructs reviewing courts to set aside agency action that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law"...
...In order to permit meaningful judicial review, an agency must
“‘disclose the basis’” of its action.


My theory is that Roberts is trying to avoid a larger debate over the APA. By saying, "Yeah, it's permissible, they just need a stronger argument (wink wink)," he's trying to give the lower court a fig leaf to approve the question with a new reason from Commerce, and thus avoid any ruling which could be used against the APA in other situations.

traditionalguy said...

OK, the Trump Administration has the authority to ask the Census question in question, but since they gave a pretext reason for asking it, they have no authority to ask the question in question.

Talk about political BS.

Mike Sylwester said...

Perhaps the Trump Administration should just charge Roberts for violating the law in his adoption of Irish children.

That would get it all out into the open and thus end the blackmailing -- or at least the perception of the blackmailing -- of Roberts.

Craig Howard said...

George W Bush made terrible judicial appointments.

Remember the Harriet Miers fiasco?

narayanan said...

How about a drive to write in numerical statement - to such a "question" not on the form? Would that be defacement of Govt. property?

Or such question optional to answer - not required?



doctrev said...

Blogger Mike Sylwester said...
Perhaps the Trump Administration should just charge Roberts for violating the law in his adoption of Irish children.

6/27/19, 1:28 PM

A worthy thought, but I'd rather see Roberts either resign over his complete failure in oversight of the FISA court, or led away in handcuffs for it. If the Democrats must launch coups against the government, let them see what happens when coups fail.

doctrev said...

Slip said...
Hello my friends
Is everybody happy?

6/27/19, 1:16 PM

Surprisingly, yes. The more people learn to have contempt for the law and the lawyers who pervert it, the happier I become. John Roberts thinks he's Solomon, but ends up looking like Pilate. To both sides, which is remarkable.

ken in tx said...

This is the second time this year that I have noticed a court ruling on a government action, not on whether it is legally authorized by law or the constitution, but rather on whether the reason for doing the action is good enough. The other case was a ruling blocking Trump from reversing one of Obama's Executive orders with one of his own. I thought that was totally outside the purview of the courts, and a responsibility of the political branches--deciding what was good enough for the country.

Mike Sylwester said...

This is good for Trump.
Must I spell out why?


It's so blatantly obvious that you are insulting our intelligence by suggesting that we do not know already.

Unknown said...

Nonapod is correct -- the Census, as currently legislated, counts every resident.

If Congress wants the Census to exclude non-citizens, Congress can pass a law to that effect.

The Vault Dweller said...

Blogger Craig Howard said...
George W Bush made terrible judicial appointments.

Remember the Harriet Miers fiasco?


I think she was thrown as a sacrificial lamb because they had decided on nominating Alito, but because he was going to replace Sandra Day O'Connor, they thought they would get political cover by first nominating a woman to replace her, even if she didn't appear terribly suited for the Supreme Court.

HoodlumDoodlum said...

Ann Althouse said...The census case is a minor glitch with no interesting legal substance that I could see (and I still don't see it).

I just finished Thomas' dissent and skimmed Alito's--I don't think its true there's nothing of legal substance (although maybe I don't grasp what you mean by that).

For the first time, seemingly ever, the Court has decided that an otherwise constitutional act, taken by someone constitutionally permitted to take it, for a constitutionally-valid reason, can nevertheless be held for additional scrutiny and/or stopped because the Court decides the actor's stated (valid) reasons for taking the action may not be the actor's true reasons.

Putting aside what's meant by true, both Thomas and Alito point out that the Court establishing that precedent will substantially alter the balance of power between the branches and has the potential to dramatically change the functioning of the government (since nearly all controversial decisions by any agency can now be subject to a district court deciding the stated reasons were pretextual and thus afoul of the Administrative Procedure Act).

Both Thomas and Alito also say the Court was only able to reach the decision it did by abandoning the "presumption of regularity," which is evidently an important legal concept in determining the propriety or constitutionality of an action under review.

The Vault Dweller said...

*terribly well suited*

Milwaukie guy said...

I have to nitpick rcocean:
That was the R's big mistake in 1870, they decided to give blacks the right to vote when they had no intention of enforcing it.

In 1870, Grant was president. He worked in favor of Reconstruction and put down the KKK. See the new Chernow bio. But by 1876, with the Hayes-Tilden compromise, Reconstruction ended and the revolutionary aspect of the Civil War ended, mostly due to Northern exhaustion. Grant and the Radical Republicans certainly intended to enforce the right to vote.

Mark said...

For the first time, seemingly ever, the Court has decided that an otherwise constitutional act, taken by someone constitutionally permitted to take it, for a constitutionally-valid reason, can nevertheless be held for additional scrutiny and/or stopped because the Court decides the actor's stated (valid) reasons for taking the action may not be the actor's true reasons.

It's the flip side of Roberts' ObamaCare decision, where he said that the law was unconstitutional under the commerce reasons cited by Congress for its enactment, but since Congress had power under the taxing clause -- even though Congress had rejected that as a basis for the law -- the law could be upheld.

HoodlumDoodlum said...

"It's legal for you to do this thing, and the reason you told us you did it is a valid legal reason, but we're not going to allow you to do it because we think there's some OTHER reason you're doing it and that other reason might not be valid."

That's a really ridiculous standard--any decision or action is likely the result of a number of different (possibly competing!) reasons. No controversial decision or action by an agency could possibly pass the purity standard. Moreover, giving itself the power to make that determination means that discovery, subpoenas, etc, are now valid and appropriate for any and every government action. All you have to do is find some soft hearted district judge and you're set--you can subject the reasoning and decisionmaking behind literally any agency action (or inaction) to years of ruiniously expensive legal proceedings--how else can we rule out the stated reasons for an action really being just a PRETEXT for the action??

wholelottasplainin' said...

Ann Althouse said...
"Why are non-citizens counted for representation?"

Same reason children are counted. And non-voters (like religious abstainers). And 3/5s of slaves (in slavery days). And women, back when women were denied the vote. They're there and they get representatives, but they don't participate in choosing them.
***********
Are you unaware of non-citizens voting in many jurisdictions?

https://www.nationalreview.com/2014/10/non-citizens-are-voting-john-fund/

https://www.redding.com/story/opinion/columnists/2018/03/05/non-citizens-start-voting-california/389255002/

https://www.washingtonpost.com/opinions/noncitizens-are-gaining-the-right-to-vote-good/2017/08/18/805b86e2-4d3e-11e7-9669-250d0b15f83b_story.html?noredirect=on&utm_term=.6e94f07ef834

Yeah, there's a federal law that says non-citizens can't vote in federal elections, but once they get into a voting booth, who's to stop them? Here in Mass. it's routine to include slates for state and local offics along with the candidates for federal positions.

Henry said...

From the Congressional Research Service:

The Constitution requires a decennial census to determine the “actual enumeration” of the “whole number of persons” in the United States. The data must be used to apportion the House seats among the states, although there is no constitutional requirement it be used to determine intrastate districts. It appears the term “whole number of persons” is broad enough to include all individuals, regardless of citizenship status, and thus would appear to require the entire population be included in the apportionment calculation. As such, it appears a constitutional amendment would be necessary to exclude any individuals from the census count for the purpose of apportioning House seats....

The debates surrounding the original Apportionment Clause and the Fourteenth Amendment appear to add further support for the conclusion that the term "persons" was intended to be broadly interpreted....

Some have pointed to the fact that the census has historically included questions about citizenship, thus perhaps suggesting that a distinction has been made between citizens and aliens for purposes of counting individuals. It is true that at least two early censuses (1820 and 1830) included a category for foreigners not naturalized49 and later censuses asked about place of birth.50 However, such information was not used to exclude any aliens from the census count. Rather, it is clear that such individuals were included in the total count....


Congressional debates about apportionment and citizenship in the 1860s, 1920s, and 1980s all concede that the Census counts all residents according to the Constitution.

Milwaukie guy said...

Considering that a large proportion of these Central American peasants with second-grade educations will enter the cash economy, aren't they sort of like untaxed Indians?

HoodlumDoodlum said...

All of this is on top of the fact that the district ruling was explicitly made using a one-off standard--the lower court essentially admitted that they were using a standard that applies only to the Trump administration in order to find the addition impermissible.

That's flatly contrary to the concept of rule of law--the courts are supposed to be impartial and apply legal standards without regard to the identity of the parties before them. The district court decided that their opinion of the Trump administration (namely the DOJ w/r/t enforcing other aspects of the VRA) should influence their decision--something that might be ok for a different administration to do is unconstitutional when the Trump administration does it.

That seems like a slightly more sophisticated version of "Orange Man Bad!" excusing otherwise out-of-bounds behavior. The Court giving that a pass is shameful.

How is any of this anything but starting at the conclusion (Trump bad, we must thwart Trump) and working backwards? Maybe that's how the Court usually works, but it sure seems baldly obvious and transparent here.

HoodlumDoodlum said...

[I don't even give that much of a shit about including or not including the question on the Census. I'd probably include it but if Trump didn't I wouldn't cry. The Court altering the fundamental relationship between the branches--and using transparently bad reasoning to do so--is a big deal, though.]

Mark said...

It is likely that there will no zero precedential effect with respect to the administrative law. This is another case where the rationale was essentially "because Trump." The agency ruling was vacated, not because it was legally infirm, but simply because . . . because it is a Trump Administration action. That's it. That's enough to justify overturning it.

And so in future years, with other presidents, the rule won't apply. Why? "Because not Trump." Because the president then will be someone other than Trump, so it will be permissible.

Lucid-Ideas said...

There's a popular euphemism over at PJ Media (Glenn Reynolds) Instapundit where he tags posts with

"Heinlein: These are the Crazy Years."

You know? I wish. I'm reminded of the 'citizenship' discussion Starship Troopers...the voting is an exercise in force debate that takes place in the classroom with Professor Rasczak. In Heinlein's Starship Troopers, only those that serve "The body politic defending it with his life" are permitted citizenship and thence the vote.

Maybe we need to get back to that. At least similar to Germany's Zivildienst.

Btw from now on I will forever be putting 'citizen' in single quotations from here on out. The word is now dubious and appropriated to mean something other than its original definition. It is a trans-word.

chickelit said...

How can we ever know how many illegals there are without counting them? I hear numbers of uninsured bandied about all the time and people are asked to open their hearts and wallets to the endless stream. This should end for obvious reasons.

Question for Althouse: Suppose you faced a larger than usual classroom of students on the first day of the semester. Further suppose that the UW administration would not tell you how many students were actually registered for your class. Would you give them all equal time?

n.n said...

The Constitution did not deny women's franchise. How common was it for women to be denied this civil right?

Democrats have a legacy of opposing civil rights, and, since passage of the Twilight Amendment, and normalization of the Wicked Solution, have doubled down on human rights abuses.

Democrats want to abort the baby and tax her, too.

n.n said...

numbers of uninsured bandied about all the time and people are asked to open their hearts and wallets to the endless stream

Another Democrat deception. The issue is progressive prices, not costs, and affordability, not insurance. The issue is also immigration reform, democrat gerrymandering, and rationing services. And, of course, the most expensive education system on the planet, which leaves people beholden to slogans, and indulgent to shared/shifted responsibility.

Howard said...

Roberts give and take. Deborables hardest hit

Gahrie said...

Congressional debates about apportionment and citizenship in the 1860s, 1920s, and 1980s all concede that the Census counts all residents according to the Constitution.

I won't speak for anyone else...but I want the census to count everyone: citizens, resident aliens, illegal aliens and anyone else. I just want them to do so accurately, and tell me how many there are of each. Then we pass out congressional seats based on the number of citizens and resident aliens. Illegal aliens should be counted, but not count for purposes of representation.

MountainMan said...

I wonder how many of us actually read the Constitution any more. We count all persons for purposes of representation because the 14th Amendment says we will:

"Section 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. "

Note: "whole number of persons in each state" - that's all persons, whether citizen or non-citizen, every man, woman child, and especially, when this was written, all former slaves, who were now to be counted as "whole persons" not the 3/5 of a person as originally specified in the Constitution.

And, as I pointed out recently, Section 2 also REQUIRES the government to know of the numbers of CITIZENS in each state in order to determine if representation in the House should be reduced for a state if it should deny any of its citizens the vote - and that would be based on reducing by "whole persons" not 3/5 of a person, as before the post-war amendments. It is obvious why this provision was put in the Amendment. Also, knowing the number of citizens is key data for voting rights enforcement.

Alito's dissent is exactly correct. Commerce has the power to put the question on the census form. This case should never have gone to the Supreme Court, should have been settled at the district court level in favor of Commerce. Here, again, is another reason why people like me continue to lose faith in the Court and in our government overall because they can't get even the simplest things right - can't control the border, can't pass a budget, can't balance the budget, everything little thing tied up in seemingly endless court cases, etc.

HoodlumDoodlum said...

Ann Althouse said...
This is good for Trump.

Must I spell out why?


Perhaps you should spell out why, by my response to that is, respectfully, who the hell cares whether it's good for Trump or not? Is it good for the country; is it good for the Constitutional order; is it good for the proper function of government; is it good for the rule of law (as a concept); and is it good for the status/reputation of the Court? Those seem, to me, like much more important questions.

These backwards-reasoned outcome-driven one-off decisions are, to me, really bad for the nation and diminish public trust in the Court...and the Court basically serves the function it does only by and through that trust. Trump's gonna be gone in a short time no matter what. Fucked up Court decisions can stick around for a long time.

HoodlumDoodlum said...

Mark said...It is likely that there will no zero precedential effect with respect to the administrative law. This is another case where the rationale was essentially "because Trump."

That's probably correct, but even under that best-case scenario think about what that means for respect for the Court (and the Judiciary generally) as a neutral arbiter and trusted wielder of impartial legal power. People who say "oh the Court has always been political" aren't wrong, but we the people give a lot of power to, and deference towards, the Court specifically because they're viewed as acting on something other than temporary political whims. The more they stay from that framework the more sense it makes to consider them nothing more than politicians in robes, at which point why respect them or their rulings any more than we respect some law or executive order, subject to being overturned by a simple vote tomorrow?

Dave Begley said...

At this late date, just put the question on the form and make a left-wing judge issue an injunction. Time is of the essence here.

Not an oldster. said...

Maybe not, Howard.

A lot of "deplorables", not elites, are forced to live amongst non-citizens rule breakers who consume public services.

Redistributing tax money back to the schools and roads in the region where they live will help them.

But science lovers should want to know the legal citizen to non-citizen ratio in their areas too. This will be valuable information over the next 10 years and is important to collect. Today -- this new decades coming ...


Roberts is not anti science, just anti Trump, as Justice Thomas alleges with his conspiracy corkboard snark ...

#AskTheQuestion


It is important, for posterity too, to chart how the non-citizen demographics in our country changed in these years, from the hidden workers in the farms and fields, to those flooding into the cities and driving up rents.

Lucid-Ideas said...

@Howard

"Deborables hardest hit."

I'm not a fan of Wasserman-Schultz, but thanks for asking.

purplepenquin said...

"So, if I break into your house, I am a resident ?"

Not a resident, but you'd definitely be counted if anyone asked how many people are currently in the house.

Leland said...

I agree with Mark on how this ruling by Roberts seem backwards to his opinion on PPACA. I can't square it, and I doubt Roberts can either.

Lucid-Ideas said...

@Howard

PPS...not "deborables" Howard. You know who?

Black Americans. Indian Americans. Hindu Americans. Asian Americans. Latino Americans. Italian Americans. Russian Americans. Brazilian Americans. German Americans. African Americans. "White" Americans. Jewish Americans. Japanese Americans. Etc. Etc. Etc.

That's who's hardest hit, anytime those with a stake in the country as 'citizens' and its attendant obligations are disenfranchised in favor of people who happened to tumble purposely over a VERY REAL line on the ground.

People who disrespect our sovereignty, our processes, and United State's 'Citizens' right to self-determination are deplorable.

Btw, they're disrespecting you too even though you're too dense to get it.

Unknown said...

The Chief Legislator

Unknown said...

By playing politics to save the Courts reputation as "above politics"

(remember his laughable claim no judges every play politics)

Roberts destroys the "authority" of the court

Why do we do what this guy says?

Not an oldster. said...

Leland, if you read the Thomas dissent, he seems to be explaining his colleague's seeming one-off reasoning by attributing it to a personal dislike of President Trump.

Justice Thomas likely is keyed in to the preferences of his co-worker, just like the rest of us working today. I have Roberts pegged as a Washington Insider conservative who is a never Trumper.

Roberts, imho, was a Jeb Bush man.

Not an oldster. said...

(or boy, as the case may be...)

iowan2 said...

OFF TOPIC

Pelosi folds. Tells the media the House will vote on and approve the Senate bill for emergency border funding.

Wishy washy, flipping, Trump still cant figure out how to be President. Bamboozled by the old, wise, politico, Pelosi

Not an oldster. said...

The conservative press really should do some digging on the Roberts adoption details.

Leave the he I do out of it, no doubt the adoptions were legal, capital L, all boxes checked...

Like the work done in completing the Census question assignment today.

Roberts has an ugly pattern of semi-manipulation it seems in finding just the right... "loopholes" to take him where he wants to go...

Admirable in a tax lawyer perhaps but not an American chief justice.

#AskTheQuestion

Ignorance is Bliss said...

purplepenquin quotes...
So, if I break into your house, I am a resident ?
then said...
Not a resident, but you'd definitely be counted if anyone asked how many people are currently in the house.

If you break into my house, you won't be counted as someone living there.
Or anywhere.

Mike (MJB Wolf) said...

Yes, Althouse, please spell out why. If my reading is correct the result is good for the country and for Trump. I think remanding it to the CC means Trump could get the form approved by assuring the lower court that the APA was not violated. But I’m not sure that’s why our host said it was “good for Trump.”

Not an oldster. said...

Leave the Roberts children out of it though.

The details are about the Roberts' actions there, his and his wife's, not the children and their biological mothers.

Not an oldster. said...

I think the professor was only considering the political propaganda question, Mike, not the cost of losing potentially 10 years worth of data about demographic settlement data...

Lucid-Ideas said...

I have travelled to 30+ countries and have been through more ports of entry than I can remember. I have never crossed a border nor claimed 'legal residence' of a nation that was not permitted me either by the that nation's dept. of internal affairs nor my own in cooperation with my their government despite being able to melt into and pass for a 'citizen' of many of them.

This is an undeniable truth. No nations or 'citizens' on Earth are as lenient or lax with their borders or their tolerance of claims on their sovereignty as the USA, Canada, and nations of the Western European Union. Full stop.

I have crossed the border between Hong Kong and Shenzhen where even taking a picture at passport control will get you landed in prison because PRC nationals try so hard to fake 户口 to move from province to province on the mainland, much less Hong Kong.

We let in more political asylum refugees than any other nation on Earth and most of our metros provide ready-made communities of ethnic diaspora - and thank God for that - for people from all over this racist (yes...most of the rest of the world's national are exceedingly racist) planetoid than any other nation...

But we're racist...
Closed-minded...
Xenophobic…
Imperialist...

Failure to deal with this issue is death by suicide. Failure to resolve this dichotomy between a purity of the law and essence of the law is a death sentence and this nation, its laws being divided against themselves, won't stand.

Michael K said...

Not a resident, but you'd definitely be counted if anyone asked how many people are currently in the house.

Would that be before or after you called the police and/or shot the sonofabitch?

Lefties with gates and walls are always lecturing us,.

Michael K said...

That was the R's big mistake in 1870, they decided to give blacks the right to vote when they had no intention of enforcing it.

If you read the history of that period, you find that the Radical Republicans went too far and the rest of the population of the North sickened of such matters as the impeachment of Johnson and the stories of carpetbaggers and scalawags.

Some of this was the real tragedy of the Lincoln assassination. It unleashed the vengeful Radical Republicans.

Then, of course, along came Wilson with revenge for the Confederacy in his heart.

rhhardin said...

The SC paralyzes congress in general. Dems don't have to work with repubs to get anything done, just find a judge. So they don't work with repubs.

readering said...

I suppose folks don't want to hear that there is a separate proceeding in the District of Maryland triggered by the discovery of electronic files of an deceased GOP strategist that were turned over to census activists by his estranged daughter. They indicate legal additional grounds to prevent use of the citizenship question: equal protection violation. So it seems unlikely that census citizenship litigation will be resolved in time to add the question to the 2020 census. Now ask yourself why Trump is in such a tizzy over this. Because he's a demographer at heart?

narciso said...

Yes the impeachment of Johnson, probably went too far, but what other excesses can one really count against them, in light of the reign of the Southern Bourbons, they were probably mild, of course, Wilson probably can be considered a Southern fried Malan (the promulgator of apartheid) Dubois's endorsement was perhaps not the worst, but likely the first mistake he did, before dabbling in fascism and Marxism

J. Farmer said...

@Lucid-Ideas:

This is an undeniable truth. No nations or 'citizens' on Earth are as lenient or lax with their borders or their tolerance of claims on their sovereignty as the USA, Canada, and nations of the Western European Union. Full stop.

That's because whites are suicidally masochistic. A deeply ingrained belief among many whites is that the fortunes of their societies were ill-gotten through means of colonialism and imperialism. That is the ideological basis behind a lot of the open borders nonsense.

I, of course, completely reject that argument, and my counter are the so called East Asian tigers--Hong Kong, Singapore, Taiwan, and South Korea--all of which experienced massive industrialization and growth rates to become among some of the highest standard of living countries on the planet.

My explanation? The population of the global north, on average, is more intelligent than the population of the global south, and thus create better functioning societies.

tommyesq said...

"Why are non-citizens counted for representation?"

Same reason children are counted. And non-voters (like religious abstainers). And 3/5s of slaves (in slavery days). And women, back when women were denied the vote. They're there and they get representatives, but they don't participate in choosing them.


Shame on you, Althouse - you know full well the fallacy of this argument - children, while not old enough to vote, are citizens, as were women prior to their being eligible to vote. This is a disingenuous argument, and you know it. Even slaves were legally present, albeit on highly immoral legal grounds. There is no evidence that someone slipping down from Canada or up from Mexico was counted, much less was intended to be counted, or was considered to be represented.

DKWalser said...

The Court should not second guess a political branch's exercise of its lawful authority (unless, of course, that exercise was in-and-of-itself unlawful, which wasn't the case here). Here, the Commerce Department chose to implement one of several legal options. The fact the incoming Secretary had 'already made up his mind' as to that course of action is wholly irrelevant. As someone recently noted, "Elections have consequences." This is, or should have been, one of them.

narciso said...

a comprehensive count, would include citizenship, at least to provide some perspective, so Roberts insists motives are base in this case, in a way he didn't when it came to Obamacare, which was a weight over the us economy, as was intended,

tommyesq said...

AA says this ruling is good for Trump. As it turns out it is also a bit dangerous for those who wanted it.

Well done, Richard Dolan, most acute analysis so far.

mockturtle said...

The questions should include a category for 'resident alien' as well as 'undocumented immigrant' [illegal]. And clearly these individuals should not be counted in Congressional and legislative districting formulae.

mockturtle said...

I, of course, completely reject that argument, and my counter are the so called East Asian tigers--Hong Kong, Singapore, Taiwan, and South Korea--all of which experienced massive industrialization and growth rates to become among some of the highest standard of living countries on the planet.

Did you intentionally omit Japan? Japan has a very high standard of living.

tommyesq said...

Left Bank of the Charles...

Does that mean you are from Cambridge or are further left than Chuck?

steve uhr said...

All nine Justices said the administration lied. Can we impeach all of them?

iowan2 said...

Readering: is that the same GOP strategist that got the question on every census from 1890 through 1950?

Even if it's true, so what?

I asked the chearleader out because I wanted to get in her pants, not get married, doesn't make me evil, just a homo sapien.

tommyesq said...

Congressional debates about apportionment and citizenship in the 1860s, 1920s, and 1980s all concede that the Census counts all residents according to the Constitution.

There is nothing to suggest that this proposed Census will not count all residents, or will not apportion according to the count of all residents - no one has proposed limiting the Census to only citizens - it is merely gathering additional information, which Censuses routinely do.

J. Farmer said...

@mockturtle:

Did you intentionally omit Japan? Japan has a very high standard of living.

Yes. Japan is not one of the East Asian tigers, and you could make a colonialist/imperialist case against Japan given their “co-prosperity sphere.”

Murph said...

Layman's opinion here:

If asking the question lies within the constitutional authority of the commerce department, as the Court has decided, then given the time constraints why should not the department just go ahead with the census including the question & leave the lesser quibble about motive to be decided... whenever?

If, after the census results are tabulated, some state, or other party with standing believes that it has been damaged or unduly disadvantaged or penalized as a result of that inclusion, let it then pursue that claim in the courts with probative evidence of same. If they prove their case, then the next census may be adapted or reformed to reflect that. (and too bad if they have to wait 10 years for it.)

The objection to the citizenship question has always rested on shaky grounds, which should not be sufficient to subvert a constitutionally authorized undertaking.

narciso said...

Because the Brennan center, the aclu, the center for American progress, will continue battering on the wall, they want as little influence from voters, including likely voters, and more from other classes, if the district lines had been affirmed it would be something else,

Anonymous said...

I am afraid that the problems with Obergefell are starting to expand. By saying that a law could be invalid because of the animus of its writers, the court opened the door for examination of the motives of legislators and hence executives. Lawyers since have started using this concept to attempt to invalidate actions they oppose. The essence of all the litigation against the Trump administration has been, not that what was done was facially unconstitutional or illegal, but that it was done for improper motives(animus) and so should be invalidated or rejected. Unfortunately, Judge Roberts seems to have decided to support this concept here and even expand it. Now one only needs to demonstrate the possibility that the motives behind an executive action might have been tainted by "improper" desires, and the action can be invalidated. This will not end well.

purplepenquin said...

"Would that be before or after you called the police and/or shot the sonofabitch?"

Both. Why do you think there would be a difference in the statement from between before&after that happening?

"Lefties with gates and walls are always lecturing us"

???

I ain't a leftie and certainly wasn't lecturing you. And of course I have "walls" in my house. Got a roof as well and a floor underneath - ain't homeless and sleeping on a bench. Are you?


Or is "walls" code for something else? Hard to keep up with the crazy slang that is constantly being slung.

Lucid-Ideas said...

I have seen so much violence. Enough to realize that it - not 'civitas' - is the baseline. It's the foundation on which everything is based. Dig through high grass and you'll see ant colonies at war. The law is meaningless without enforcement, and unfortunately it still comes out the barrel of a gun...as tyrannical or altruistic as you wish to attribute to it.

'Civitas' and civilization are very precious. Because of that I shall respect the SCOTUS decision although I believe firmly it will ultimately weaken the constitution of the nation and its 'citizens'.

Today was a sad day in my opinion. Everyone gets to have a respected nationality except us. Remember, you're not allowed to ask.

In most other countries they can pick you out of a lineup, just remember you're not allowed to ask the nationality of the voices you hear behind the glass window...or maybe even see.

Murph said...

...demonstrate the possibility that the motives behind an executive action might have been tainted by "improper" desires, and the action can be invalidated.

Yes. If an action is found legal pursuant to applicable law or regulation, then it should be allowed to move forward, notwithstanding that it might also fulfill a political desire.
If the opposition does not like it, then it can take the regular steps to change the law or regulation. Determining motive, or weighing competing possible / potential motives, is akin to Carnac the Magnificent's psychic answers to unseen questions. [If you're not old enough to remember Carnac, google it.]

Ryan said...

AA said: "This is good for Trump.
Must I spell out why?"

1. Trump can make up any number of illegals here, and nobody can dispute him because we don't have an official count. He can exaggerate wildly if he wants. "Half the country is here illegally."

2. Since we don't know how many illegals there are, he can claim any number of votes going to democrats are coming from illegals.

3. Since we don't know how many illegals there are, he can claim any number of jobs going to illegals.

And etc...

mockturtle said...

Serious, not rhetorical, question: Is there any country in the world with laxer immigration laws than those of the US?

narayanan said...

https://en.wikipedia.org/wiki/Administrative_Procedure_Act_(United_States)

APA is the United States federal statute that governs the way in which administrative agencies of the federal government of the United States may propose and establish regulations. To protect citizens, the APA also grants the judiciary oversight over all agency actions.[2] It is one of the most important pieces of United States administrative law.

I don't see how "questions on the census" =>>> regulations?!

rcocean said...

"Serious, not rhetorical, question: Is there any country in the world with laxer immigration laws than those of the US?"

Certainly not compared to Israel, Australia, Mexico or Canada. The 4 countries I'm knowledgeable about. I haven't even brought up Japan, Korea, Taiwan, Singapore, or China. Try to be an "undocumented immigrant" in those countries! They'll kick your ass out.

narciso said...

the excuse against citizenship comes from amici in this case

https://www.oyez.org/cases/2015/14-940#!

rcocean said...

We're a joke country because the Chamber of Commerce, Wall Street, and the Democrats want it that way. Its power for the Democrats, and $$$ for the rich Republicans.

HoodlumDoodlum said...

Richard Dolan...If undermining the power of the administrative state is the long term goal, this is a step in that direction, and if followed up, can become a powerful check on admin agencies.

I mentioned that possibility after reading Alito raise it, but that doesn't "help Trump;" any such legal battles are likely to be multi-year, drawn out affairs. If this is a rule that was consistently applied it would definitely be a weapon that could be used to grind the administrative state to a halt...but there's no reason to think it's a rule that'll be applied in the future and if it were I guarantee as soon as the pending cases started piling up courts and the Court would decide that allowing challenges of that type were too harmful to the vital needs of the state and would start tossing them out. In the interim we'd get chaos and expense, of course. That'd have to start now, so it definitely wouldn't help Trump.

At best, though, what you'll get is slowing down implementation of administrative action/decisions and a large, important shift of power to the Judiciary--if they get the final say on the *true* motives behind any action (and can require the other branch to prove a negative) then the Judiciary has in effect an unaccountable, unrestrained veto over Executive agency actions. That's not how the Constitution says it's supposed to work!

Francisco D said...

That's because whites are suicidally masochistic. A deeply ingrained belief among many whites is that the fortunes of their societies were ill-gotten through means of colonialism and imperialism. That is the ideological basis behind a lot of the open borders nonsense.

That was the ideological basis behind the antiwar movement on the late 60's and early 70's. I was involved and slowly realized how vehemently hateful the radical leaders were. They hated America and they hated White people. Most were upper middle class White folks who were much more economically privileged than I was.

Skipper said...

Face it, judges are just politically connected lawyers in black robes. If you want fewer nonsensical decisions, demand fewer laws.

rcocean said...

"If you want fewer nonsensical decisions, demand fewer laws."

Huh? That has the stupidest thing I've seen. Which laws should we get rid of? What about we get rid of the law that allows the Libertarian party to be on the ballot?

They're the biggest jackasses in the USA.

cacimbo said...

Is anyone surprised by this after Roberts saved Obamacare. Roberts again proved props from lefty media are his first concern - actual law comes in second.

narciso said...

with respect, that seems dubious, since we are just asking them, just to do a more complete count, lets not forget where this case comes from:

https://babalublog.com/2019/06/27/bill-de-blasio-campaigning-for-pres-of-the-u-s-among-union-workers-in-miami-quoted-che-guevara-who-denounced-the-u-s-as-the-great-enemy-of-mankind-and-who-outlawed-labor-unions-under-penal/

mockturtle said...

That was the ideological basis behind the antiwar movement on the late 60's and early 70's. I was involved and slowly realized how vehemently hateful the radical leaders were. They hated America and they hated White people.

Francisco, I was part of the 'movement', too, but it was well into the 1970's before I came to my senses and by 1980 I was voting for Reagan. ;-) But yes, the self-hate of privileged youth combined with the smug certainty of moral rectitude---yes, we were pretty disgusting. And while we were disrupting college campuses there were 'straight' students there trying to get an education, some of whom were older and working a job or two. Looking back it makes me very ashamed but it also prevents my taking too seriously the rantings of today's youth about climate change, etc.

Michael K said...

I ain't a leftie and certainly wasn't lecturing you. And of course I have "walls" in my house. Got a roof as well and a floor underneath - ain't homeless and sleeping on a bench. Are you?

You sure sound like it. You coulda fooled me.

Michael K said...

I suppose folks don't want to hear that there is a separate proceeding in the District of Maryland triggered by the discovery of electronic files of an deceased GOP strategist that were turned over to census activists by his estranged daughter.

Of course, Another lefty like you along with 20 last minute appeals from every lefty group in the country.

narciso said...

another at least half measure at best:


https://legalinsurrection.com/2019/06/democrats-about-face-on-senate-border-aid-bill-rankles-caucus-members/

Known Unknown said...

John Roberts. The gift that keeps on taking.

narciso said...

here's a modest proposal

https://dailycaller.com/2019/06/27/justice-roberts-census-citizenship-question/

frak said...

So if the stats were to show that there are 40 million illegal aliens instead of 11 million, that might be info that could affect many people’s opinions.

Qwinn said...

Let me get this straight. We live in a world where every single Democrat position begins, ends, and utterly relies on the imputation of venal motives on the part of Republicans. I cannot think of a single exception. Now the Court has decided that the *possibility* of a venal motive for a lawful action makes it illegal? Thus ends the Republic.

bagoh20 said...

"They're there and they get representatives, but they don't participate in choosing them."

By that logic we should be counting tourists, temporary visa holders, the dead, and certainly Indians, but the important thing to me is legally residing persons. Humans never count people for representation in an organization when they are not legally part of it for obvious reasons of fairness and self determination - interlopers could take over an organization designed and maintained by and for others. Otherwise you cannot guarantee that a "Government of the people, by the people, for the people, shall not perish from the Earth. "the people" being the people rightfully part of the group, and not those appropriating (stealing) its benefits illegally.

Section 2 of the 14th Amendment states: "Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed."

bagoh20 said...

I don't get why the motivation of one guy or even the administration is of any import in this. First, it's not honest to assume that motive can be decisively known, and second, the action may be and is important to millions of Americans beyond those brining it. Can the government rob me of my right to a jury trial based on good motives? Can they convict me without a trial if the court thinks it's out of good motives?

bagoh20 said...

If you have a small district, is it fair, equitable, or reasonable to bring in enough non-citizens so that your small numbers are represented more than a much larger neighboring district that only has citizens, thus disenfranchising the citizen of that district? In other words, is such cheating fair, good for the country, right, and the intent of The Constitution?

bagoh20 said...

Incidentally, I also do not care if it's good for Trump or not. He is only one citizen.

richlb said...

Late to the game here, but cant they print the forms both ways? It's a lot of money, but not astronomical.

iowan2 said...

As far as printing forms.

Why are we not doing this online? Give Amazon half of what they are going to spend on printing and they will get it done on time, accurately and secure. You can do this for 90% of the ones printed ones would have done.

Ann Althouse said...

Some people are arguing with me over something I didn't say. I didn't say that persons who are ineligible to vote should be included in the apportionment for redistricting in the "one person, one vote" math. I only intended to respond to the question about why it's even permitted. I'd probably support apportionment according to the number of eligible voters. That's more closely aligned to the concept of equally weighted VOTES.

Anyway, the SCt recently considered the question of whether a state was REQUIRED to use only the eligible voters. In Evenwell v. Abbott, the answer was no. The Court did not decide whether using only eligible votes was PERMITTED.

From the syllabus: "Constitutional history shows that, at the time of the founding, the Framers endorsed allocating House seats to States based on total population. Debating what would become the Fourteenth Amend- ment, Congress reconsidered the proper basis for apportioning House seats. Retaining the total-population rule, Congress rejected pro- posals to allocate House seats to States on the basis of voter population. See U. S. Const., Amdt. 14, §2. The Framers recognized that use of a total-population baseline served the principle of representational equality. Appellants’ voter-population rule is inconsistent with the “theory of the Constitution,” Cong. Globe, 39th Cong., 1st Sess., 2766–2767, this Court recognized in Wesberry as underlying not just the method of allocating House seats to States but also the method of apportioning legislative seats within States."