Wednesday, July 3, 2019

What did Donald Trump do today?

He tweeted that he intended to defy a Supreme Court order, which forced his own DOJ to throw him under the bus.

Last week, Trump lost a case at the Supreme Court case over whether a question could be added to the 2020 Census asking whether the respondent was a citizen. One reason not to have such a question is that it discourages legal, noncitizen residents from responding—which would unfairly disenfranchise minorities and hurt the Democratic-leaning states where legal residents often live. 

Wilbur Ross, Trump's Commerce Secretary testified under oath that there was no such partisan intent, but this was a lie: documents came to light after the Court heard the case proving that the actual rationale had been, in the words of a Republican consultant, to create voting districts that "would be advantageous to Republicans and Non-Hispanic Whites” and “would clearly be a disadvantage for the Democrats.”

Trump blustered about delaying the Census—which would be unconstitutional—but yesterday, his Commerce department appeared to finally admit defeat. Printers were given the go-ahead to print Census forms without the citizenship question.

Then, this morning, Trump tweeted that reports that he would abide by the Supreme Court's decision were "FAKE." And that in turn prompted George Hazel, the federal judge handling the case, to summon DOJ lawyers to explain themselves

JUDGE: So I guess the reason I wanted to have this call, obviously, we had our call [yesterday] — and then this morning I saw a tweet that got my attention. I don’t know how many federal judges have Twitter accounts, but I happen to be one of them, and I follow the President, and so I saw a tweet that directly contradicted the position that [DOJ lawyers] had shared with me yesterday.

I'm going to ask, frankly, the same question I asked yesterday... Is the Government going to continue efforts to place a citizenship question on the 2020 census?

The DOJ lawyer responded:

Your Honor, this is Mr. Gardner. I want to back up just a step and say that I’ve been with the United States Department of Justice for 16 years, through multiple Administrations, and I’ve always endeavored to be as candid as possible with the Court. What I told the Court yesterday was absolutely my best understanding of the state of affairs and, apparently, also the Commerce Department’s state of affairs, because you probably saw Secretary Ross issued a statement very similar to what I told the Court. 
The tweet this morning was the first I had heard of the President’s position on this issue, just like the plaintiffs and Your Honor. I do not have a deeper understanding of what that means at this juncture other than what the President has tweeted. But, obviously, as you can imagine, I am doing my absolute best to figure out what’s going on.

Later, another DOJ lawyer told Judge Hazel that the department "had been instructed"—presumably by the same tweet—to find a legal way around the Supreme Court decision. As a legal matter, there's almost no chance that the Supreme Court would give the Trump administration a second chance at finding an acceptable reason to ask the citizenship question after being caught lying about its first reason. As veteran Court journalist Linda Greenhouse put it:

Once the court rejected the administration’s stated rationale as phony — or “contrived,” as Chief Justice Roberts put it more politely in agreeing with Federal District Judge Jesse Furman that improved enforcement of the Voting Rights Act was not Secretary Ross’s real motive — the administration might have tried to come up with some other politically palatable explanation. That would almost certainly have failed, because courts generally will not accept what they call “post hoc rationalizations,” explanations cooked up under pressure and after the fact. But even if such a ploy had succeeded, its very success would have proved Secretary Ross to have been a liar all along.

In other words, what happened today was that Donald Trump tweeted that he was planning to defy a Supreme Court order, but forgot to tell his own Justice Department, which then had to admit to a federal judge that it didn't know what Trump was talking about.

Why should anyone care about this?

  • Presidents don't just get to ignore court orders.
  • There's more to making policy than rage-tweeting and then forgetting to tell anyone who actually works for you.