Judges do not have the power to veto abstract political policies or laws; they merely render judgment to individuals with proper standing before the courts where individualized rights were implicated. That is why they have as much power to dictate the drafting of U.S. Census questions as I do or as the president of Afghanistan does. Thursday’s decision presents President Trump with the perfect opportunity to “remind” the courts of their “impotence,” as Justice Antonin Scalia predicted would happen before he died.
I’m often asked if the president should pull ‘an Andrew Jackson’ on the courts and put them in their place. My response is that it is the courts who are pulling an Andrew Jackson, except, unlike a president, they lack the power to enforce their usurpations.
Drafting a census, much like giving out visas and work permits to illegal aliens or controlling the border, is an executive function. Unlike convicting individuals charged with crimes who face the loss of life and liberty, which is eminently within the province of judicial power, courts don’t have power over abstract political questions dealing with broad executive powers affecting the whole of the people. As such, when a president applies these policies in concert with the Constitution and the law, he is not “defying a court” the same way he would if, say, he directed the Justice Department to incarcerate or execute John Doe for a crime after a court vacated his conviction.
The census ruling is the superlative opportunity for Trump to begin reclaiming inherent executive authority from rogue court opinions designed to create broad political rules outside of their jurisdiction. This case has all of the key elements for doing so: the Constitution, statute, history and tradition, are all on his side and there is no tangible, individualized harm to specific plaintiff that would result from Trump continuing to ask the citizenship question on the census. Moreover, Trump is merely overturning a policy from the previous administrations and reverting back to our long-standing history. No new ground is broken.
Once the president does it this time, he will then have an easy avenue to do so every time a district judge mandates he continue a discretionary policy of his predecessor.
To begin with, each branch of government has the responsibility to use its powers in accordance with their oath to the Constitution, irrespective of what other branches are doing. That is literally what is meant by separation of powers. The same way a judge can grant relief to an individual plaintiff when he believes the Constitution compels such a result, irrespective of the laws of Congress or the policies of the executive branch, the president must also execute policies in concert with the law, irrespective of what a court rules for an individual plaintiff.
But even if we were to accede to the dangerous notion that the courts are the sole and final arbiter of the Constitution, there were at least five justices (including Chief Justice John Roberts) who conceded the following points [contrary to some lower court judges]: The Constitution grants the president authority to ask the citizenship question, statute grants the president such authority, the question has been the very essence of the census for most of our history, including our founding, and the president fulfilled the dictates of the Administrative Procedure Act by not implementing the new policy in an arbitrary and capricious manner. In fact, Roberts acknowledged that the decision “was reasonable and reasonably explained, particularly in light of the long history of the citizenship question on the census.”
It’s just that Roberts joined four other justices in concocting a rationale that something just doesn’t smell right with the stated rationale of the Trump administration for making the change, even though the insinuated alternative rationale, even in Roberts’ own mind, would not inhibit Trump’s ability to execute the most foundational power of drafting the census.
Statute [13 U. S. C. §141(a)] says very clearly that the secretary of commerce “shall, in the year 1980 and every 10 years thereafter, take a decennial census of population. . . in such form and content as he may determine, including the use of sampling procedures and special surveys” [emphasis added]. Statute [13 U. S. C. §221] also compels everyone to respond to any of those questions he may determine with the exception of questions about religious affiliation.
It’s an open and shut case. The president must proceed with his plans. Courts don’t draft census surveys the same way Roberts himself admitted they don’t draw election maps, which themselves are determined by such census information. That is inherently one of the most political questions by nature in our system.
The only thing the president would be advised not to do is encroach upon the core judicial power, even when they are wrong, to punish individuals who receive a favorable court ruling. For example, if people decide they don’t want to respond to the census, under current law, the executive branch can fine them $100. Those individuals have the right to go to court and have them apply this Supreme Court ruling to grant relief to their property ($100) for not filling out that particular question. That is the check the judiciary has on the executive branch. But likewise, the president can absolutely mail out forms with the question on it because the drafting of such documents is inherent executive authority.
Trump has the opportunity to follow in the legacy of Abraham Lincoln on this exact point. The Supreme Court in Dred Scott v. Sandford (1857) ruled that the Missouri Compromise of 1820, which barred slavery in most of the new territories, violated the constitutional property rights of Mr. John F. A. Sanford.
During the sixth debate with Stephen Douglas during the 1858 race for Senate in Illinois, Lincoln asserted: “Judge Douglas understands the Constitution according to the Dred Scott decision, and he is bound to support it as he understands it. I understand it another way, and therefore I am bound to support it in the way in which I understand it.”
What does that mean? Does it mean “defying” the court in the way Andrew Jackson did actively chasing out the Cherokee Indians from Georgia following the Worcester v. Georgia opinion? That certainly would have been justified since Chief Justice Roger Taney declared black citizens to be property and not worthy of citizenship. But that’s not what Lincoln was even driving at.
Lincoln observed that courts can adjudicate individual cases, but if they seek to use those rulings as a way of setting political policy across the nation, it should never be regarded as a “political rule” to be “binding on the members of Congress or the President to favor no measure that does not actually concur with the principles of that decision.”
Thus, while Lincoln said during the debate that he would not take away Mr. Sanford’s “slave” because he got a court order, he would not treat it as a political rule for executive and legislative powers governing the nation.
Despite the Dred Scott decision, Lincoln as president signed laws prohibiting slavery in the territories, and, as head of the executive branch, he not only declined to treat black people as property, he treated them as citizens and issued them official government documents, such as passports. Those issues are within the province of the other branches of government, who must interpret the Constitution as they understand it.
How rich it must have been for Roger Taney to be reminded of his own impotence when he was compelled to administer the presidential oath of office to Abraham Lincoln on March 4, 1861. He was forced to listen to Lincoln’s inaugural address when he rejected the notion that “the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court the instant they are made in ordinary litigation between parties in personal actions.”
The man who wrote his slavery opinion based on “the state of public opinion in relation to that unfortunate race” was forced to eat crow before his very eyes by giving the Bible to the Great Emancipator.
The only point about which Justice Scalia was wrong in the gay marriage case when he predicted his fellow judges would one day be “reminded of our impotence,” is that there are no longer any men like Lincoln left to issue that reminder.
Daniel Horowitz is a senior editor of Conservative Review. Follow him on Twitter @RMConservative.