Choosing Not to Defy Courts

Terry H. Schwadron

July 12, 2019

What happens if Donald Trump defies the Supreme Court? What happens if Trump decides to add his vaunted Citizenship Question to the decennial Census despite a Supreme Court decision that said as politely as possible that the Trump administration had lied about the reasons to add the question.

We were just about to find out, because Donald Trump had called a White House gathering to announce he was going ahead anyway with a challenge to add the question despite the recent Court ruling.

But Trump pulled his punches. Instead, Trump, using sarcasm and jingoistic language, outlined an executive order yesterday that falls short of a literal challenge. Instead, he vowed to eliminate any bars about information sharing among federal agencies, and order all government agencies to produce any information each has about who is a citizen.

Exactly how that would work is unclear. Will these actions by agencies violate privacy rules? Are databases held in disparate computer systems even be mergeable? Will they be dependent on name matches, a notoriously poor technique? Just this week we were told that immigration officials were using facial recognition software to identify individuals from driver’s license records in selected states, a technique already riddled with false positives.

To the extent that the executive order is seen as bucking the courts, the order may well be challenged in court, and the appropriate House committee is already threatening to withhold any funds to do the printing to add the question.

It is and will be a Mess. Essentially Trump caved, and Atty Gen. William P. Barr gave him what looked like an alternative to gain the information.

To me, an executive order to do what the decision by Chief Justice John G. Roberts Jr. may have just barely allowed legally represents an attack on our Constitution and our institutions. Had he gone ahead with a straightaway challenge it would have raised the question: Why should Trump — or you and me, for that matter — abide by any court decision, including those pending about blocking Congressional subpoenas?

The timing here is a factor: On Sunday, Trump is promising to start rounding up illegal immigrants whose asylum appeals have run out of time with raids on homes in 10 major cities looking to make upwards of 2,000 family arrests. The true point of the Census, then, is connected directly with immigration policy, despite the administration’s earlier arguments.

The Commerce Department is already printing the questionnaires. The federal courts that heard the original case has already told Trump no a couple of times, including two rulings this week that he could not summarily now simply replace his legal team. Trump himself now insists that he will go ahead with an executive order, perhaps with the apparent approval of Attorney General Barr who has been working to let the president get his way.

Trump has made clear that his interest in the Census is a practical partisan effort to help Republicans by depressing the Census response from undocumented immigrants who are eager to avoid detection by a government that promises to deport them. Despite promised from the government to use only aggregated information, it is easy to imaging people hiding from government-labeled or badged people and forms that will list names and addresses.

Despite the White House claims about stretching legality here, what we have on our hands is an outstanding challenge to American democracy as we know it. For those of us who have been chronicling what we see as a steady march towards presidential authoritarianism, this chapter looms as a dangerous precipice.

In an Atlantic magazine commentary, Garrett Epps, a professor of constitutional law at the University of Baltimore, nicely lays how we got to this point, If more law-oriented than politically:

Quickly, Commerce Secretary Wilbur Ross told the courts that the citizenship question was wanted to help with enforcement of voter rights regulations, but over time, that claim looked thinner and thinner, and Ross had to acknowledge lying about it. The Supreme Court, through a deciding vote and opinion by Chief Justice Roberts, told Trump that the courts demand a real explanation, but left the door just ajar for another attempt before the lower court. That lower New York judge has disallowed the change of lawyers — actually joined by a second federal judge on Wednesday — and has allowed new evidence from documents from a dead Republican political operative that described the real reasons for the question.

Democrats, naturally, have leaped on this dust-up as a cause for political alarm; Congressional Republicans, just as naturally, have kept silent as Trump maneuvers to get what he wants — despite the law.

No one knows exactly why the current lawyers wanted out, but speculation ran wild that even the lawyers felt that they could no longer represent a deception before the court.

Here is how Epps sees it: “To Trump and those around him, I suspect, the crisis has already begun. To them, it consists in this: Trump’s own Supreme Court — bought with dark money and earned with power politics — ruled against him on an issue of the highest consequence. This is a first for this Court, and Trump seems not to know how to handle it.”

From a substantive view, Trump’s lawyers had told the Supreme Court those political reasons had “nothing, nothing, NOTHING! to do with the question. Now Trump says they did.” Epps sees any late legal appeal to wording in the 14thAmendment that he sees as failing before the courts.

Still, all of that is table-setting. Just as Trump considered persisting at adding the late question, essentially telling the Court that the White House powers supersede the Court’s jurisdiction, whether he will violate the courts remain open for cases involving ethics questions, the limits of executive orders and his refusal to answer congressional subpoenas — all measurable steps toward authoritarianism.

I hardly see Chief Justice Roberts ordering Trump’s arrest. But the results cannot remain legally polite.

When it happens, Senate Republicans will need to decide whether their oath of office requires them to uphold an American democracy.