As devastating as Trump’s capitulation on the census was to America’s citizens, the consequences of his decisions on other issues are far graver.
It wasn’t just the decision to drop the citizenship question that was the problem. It was the way the administration did it. After the president announced his decision to print census forms without the most important question, Attorney General William Barr took the lectern in the Rose Garden and added a gratuitous but far-reaching point.
“Some in the media have been suggesting — in the hysterical mode of the day — that the Administration has been planning to add the citizenship question to the census by executive fiat without regard for contrary court orders or what the Supreme Court might say. This has been based on rank speculation and nothing more. As should be obvious, that was never under consideration. We have always accepted that a new decision to add a citizenship question to the census would be subject to judicial review.”
This statement is likely the most dangerously fatal comment of Trump’s presidency. This is not just about the census. The lower courts are engaging in civil disobedience against long-standing and foundational laws, especially on immigration and sovereignty. As members of a separate branch of government who swear an oath to uphold the laws and the Constitution, the president and the attorney general have an obligation to properly adhere to the Constitution as much as the courts do, if not more.
This was after AG Barr said that even the Supreme Court has said such a census question is legal but questioned the method of decision-making. Barr made it clear that in withdrawing the question, the administration is bowing to the logistical problems of getting the remanded case through the courts again in time to conduct the census properly, not to a legal problem.
James Madison said, “The several departments being perfectly co-ordinate by the terms of their common commission, neither of them, it is evident, can pretend to an exclusive or superior right of settling the boundaries between their respective powers.”
Yet, in one fell swoop AG Barr has signaled to the Left and the legal profession that so long as they tie up any issue in several liberal courts, the administration will not assert separation of powers. We essentially have one branch of government.
In this case, the president has the Constitution, statute, and history and tradition on his side. It’s likely that section 2 of the 14th Amendment downright requires that citizenship be asked on the Census. Even John Roberts admitted that the administration was right. Yet, in an act of lawlessness, he said that nonetheless Trump should go back to the district court and give it more explanation. But here’s the rub: If Roberts is admitting that this is 100 percent within the jurisdiction of the executive branch in terms of the Constitution and statute, how then could he say that a district judge has the right to demand the reasoning behind a facially lawful and foundational power of the executive branch?
As Justices Thomas and Alito noted in that case, taken to its logical conclusion, this means any district judge can just give standing to sue any run-of-the-mill executive function and demand a reason for it, while indefinitely tying it up if he feels he doesn’t like the reason. Even the most ardent judicial supremacist of last generation would never have envisioned such a scenario, because it literally wipes out any last vestige of separation of powers.
Rather than using this basic fact to delegitimize and expose the insidious nature of what John Roberts did, William Barr blithely summed up his opinion as if it made sense and was 100 percent legitimate.
This was the time for the President Trump to put the courts on notice that he will finally enter the arena as a separate and co-equal branch of government to defend its prerogatives. Even if Barr thought the census wasn’t worth the fight, the Trump administration is now confronted with the courts nullifying his entire presidency on every single issue. Most importantly, the courts are now essentially saying that deportation laws are unconstitutional. Every single deportation, even backed by the Constitution, law, and 200 years of Supreme Court precedent, along with history and tradition, can be brought before one of the approximately 1,000 district court judges to assault the administration’s motives in following the law.
How can Trump let that stand? Alexander Hamilton wrote in Federalist No. 33 regarding tyranny from the strong federal legislature that when it steps outside the enumerated powers to crush the states, those acts are “merely acts of usurpation and will deserve to be treated as such.” Thus, whenever Congress overstepped its boundaries, it was understood that even a mere state government would have the moral obligation to stand its ground on the Constitution. How much more so when it comes to the federal executive branch vs. the weakest federal branch?
Robert Bork once said, “To the objection that a rejection of a court’s authority would be civil disobedience, the answer is that a court that issues orders without authority engages in an equally dangerous form of civil disobedience.”
That was 23 years ago, when even Bork could never have envisioned this degree of open civil disobedience against our laws by lower court judges. Today’s judges believe that Trump is some sort of reincarnation of Hitler and that they have a moral obligation to defy our laws and Constitution and usurp power as if this were Germany in the 1930s. But the president and the attorney general have an equal obligation to safeguard the execution of the laws passed by Congress – whether on the Census, on deportation, or election law – from usurpations of carefully selected judges who share the views of Ilhan Omar.
In this particular case, Trump could even have fulfilled any obligation to the courts by simply issuing an immediate executive order and offering the obvious rationale for including the citizenship question. A direct order from the president (as opposed to the secretary of commerce) would not have required the cumbersome process of the Administrative Procedure Act, even according to the lawless precedents of lower courts. But the administration refused to even fight within the court’s game, much less delegitimize the court’s game. It just folded.
Now, the ACLU and all of the Soros-funded illegal alien legal defense groups are taking notes. They know how to pick the lock. Trump could win a second term, with huge majorities in Congress, and it will be for naught, because the Trump administration has already crowned individual district judges kings of the land, with no checks or balances or even defined jurisdiction of the scope of their powers.
Daniel Horowitz is a senior editor of Conservative Review. Follow him on Twitter @RMConservative.