Laurence Tribe & Bruce Ackerman: Why Trump's census Exectutive Action is DOA legally

[hlthe2b]

I really wish I could make every DUer read this (Ackerman's FULL piece in politico linked below to get a true sense of why history & the law is on our side). I'll simply strongly encourage to do so...

Link to tweet

Link to tweet

Why Trump’s Census Play Is Blatantly Unconstitutional

We owe Congress’ control of the Census not just to the Constitution, but to Republicans doing the right thing in the 1920s. Now Trump wants to roll it all back.

https://www.politico.com/magazine/story/2019/07/11/trump-census-history-227353

--snip--
If Trump moves ahead, he will be threatening a centuries-old consensus that puts Congress in charge of the census. This legal foundation has been tested and reaffirmed repeatedly throughout American history—the last time when another Republican Party threatened by immigration considered modifying the census process to fit its political ends.
--snip--
Confronting the prospect of political defeat, the Republicans refused to commit electoral suicide. For the first and only time in American history, Congress violated the Constitution and continued to use the 1910 census figures rather than the 1920 ones, as the basis for the distribution of seats in the House and Electoral College for the next decade.

This brute subordination of constitutional responsibility to politics set the stage for an even greater crisis as the decennial head count approached in 1929, eventually leading to a high-visibility decision reaffirming Congress’ decisive control over the census operation. This time around, Republican President Herbert Hoover was in the White House and Republicans were in command of both houses of Congress. Would party leaders once again stack the deck against their opponents by continuing to use the 1910 numbers as a baseline for national competition for yet another decade?

To their great credit, the answer was no.

--snip--
Trump can tweet what he likes, but his lawyers are obliged to confront the constitutional texts, and statutory commands, that represent two centuries of historical experience with the problem of reapportionment. Little wonder, then, that Trump tried to fire his entire legal team Monday morning when they confessed to the district judge, Jesse M. Furman, that they were unable to provide him with a rationale for unilateral presidential action that seemed remotely plausible, and that Furman has now rejected Trump’s effort to replace them with a new legal team as “patently deficient.”

Given his track record of compliance with White House commands, Attorney General William Barr will undoubtedly ask the Supreme Court to reverse Furman’s decision, and give his new highly politicized team of lawyers a chance to rationalize Trump’s latest precedent-shattering assertion of unilateral authority.

I would rate his chances of success at zero. Since the chief justice has already rejected the bureau’s conduct as an “abuse of discretion,” it is impossible to believe that he will uphold the president’s direct intervention into a regulatory system that has profound roots in our constitutional tradition.

Much More

[hlthe2b]

1. and on Trump repercussions if he ignores...

I would rate his chances of success at zero. Since the chief justice has already rejected the bureau’s conduct as an “abuse of discretion,” it is impossible to believe that he will uphold the president’s direct intervention into a regulatory system that has profound roots in our constitutional tradition.

Roberts is rightfully concerned, however, with maintaining his court’s legitimacy in these polarized times. Since there were dissenters to his previous opinion, he may well try to avoid another show of disarray by persuading his colleagues to join him in a summary judgment, affirming Furman without the need for any elaborate opinion.

Regardless of his success on this front, Furman’s vindication will force Trump to ask himself a very big question. If he follows up on his threatened executive order, he will not only be defying the constitutional text, and two centuries of statutory practice. He will be in open defiance of the Supreme Court of the United States.

This represents the paradigmatic “high crime or misdemeanor” that served as the principal ground for the impeachment and near-conviction of Andrew Johnson during Reconstruction, and which has lurked in the background since Richard Nixon’s resignation during the Watergate scandal.

[Freethinker65]

2. Wasn't Roberts seen meeting with AG Barr several days ago?

Speculation was that Roberts was advising Barr on what, if anything, it would take to reverse the Court's decision?

[gratuitous]

3. "I would rate his chances of success at zero"

So would I, under ordinary circumstances. But after years of manipulation, the Supreme Court is now constituted of a majority of justices who don't recognize stare decisis, historic readings and interpretations of the Constitution and the law, the right of Congress to write and pass legislation, or any check on executive authority as long as the executive in question is on their team.

Yes, Chief Justice Roberts turned back the Bureau's attempt to put the question on the census as an abuse of discretion, but that was only because the excuse the Bureau proffered was so patently bogus. A lot of people read that decision as "Come back when you think up a better lie. We're listening."

[hlthe2b]

4. Neither Ackerman nor Tribe are ignorant of those trends... and, they personally know the "players"

If you have time, read the entire article. It shows why Roberts will REALLY be boxed in.

[gratuitous]

5. I read the article

"Roberts is rightfully concerned, however, with maintaining his court’s legitimacy in these polarized times." I have a very different opinion from Ackerman about any concerns the Chief Justice might have about his court's legitimacy, and whether those concerns would override a chance to stick it to the libs.

"Is Trump willing to escalate his ongoing unilateralist campaign to provoke such a wrenching constitutional crisis?" I believe Trump doesn't fucking care about any so-called "constitutional crisis" at this point in his administration. I don't know precisely when he crossed the "dont' give a fuck" line, but I know that line is receding quickly in his rear-view mirror. One of the articles of impeachment Rodino's committee drew up against Nixon was for abuse of power, but 45 years later, that seems like a quaint charge from a bygone era anymore.

If by some chance the Roberts court rules against the administration again, I can easily see the administration bulling ahead and printing up the census forms with the citizenship question on it anyway. The Court won't stop him. The House can't stop him. The Senate will support him. Some folks will wring their hands and rightfully complain that this is dictatorial behavior, but a significant percentage of the American people will endorse it, and the responsible agencies of the government will let it happen (they might complain, but it will still happen).

[tblue37]

6. So who's gonna stop him? nt

[hlthe2b]

7. Court injunction followed by Federal Marshalls seizing any illegal census forms, followed by

House finally initiating impeachment proceedings. Federal Marshalls are the area of DOj most beholding to the courts, so yes, I do think they would.

Do I think it will stop before this scenario, yes.

[tblue37]

8. I hope you're right. I worry that you might not be. nt