Call 2019 the “Year of the Redo.” The term “redo” is now omnipresent in the national dialogue. Donald Trump accuses Democrats of wanting a “redo” of the 2016 election. He also falsely asserts Nancy Pelosi and the House Judiciary Committees want a “redo” of the Mueller report although its principal author clearly states Congressional consideration is the appropriate next step in the Trump/Russia saga. Jeffrey Epstein’s lawyers will surely argue his recent indictment on sex trafficking charges by the Southern District of New York is a “redo” of his 2007 plea agreement.
But what do you call it when you get, not one, but two chances to reverse the course of events. As with sports championships, a “three-peat?” A “threedo?” The “third grail?” Regardless of the nomenclature, on an immediate issue of national importance, we watched as the Supreme Court of the United States (SCOTUS) became the enabler-in-chief to the cry-baby in the White House who is all too eager, when it serves his purposes, to scream, “Do-over! Do-over!”
On June 27, by a 5-4 vote, SCOTUS refused to green light the Trump administration’s effort to include a question related to citizenship on the 2020 census. But in what must be a balancing act that would put the Flying Wallendas to shame, Chief Justice John Roberts did not shut the door either. Acknowledging the rationale argued by Department of Commerce lawyers was “contrived,” he wrote:
An agency must offer genuine justification for important decisions, reasons that can be scrutinized by courts and the interested public…If judicial review is to be more than an empty ritual, it must demand something better than the explanation offered in this case.
How did the Court know the administration’s argument that the addition was not designed to protect Hispanic voters under the Voting Rights Act? Perhaps it was language contained in a memorandum authored by the late Thomas Hofeller, a GOP advisor, to the Commerce Secretary, which demonstrated how the citizenship question would be advantageous to “white Republicans” and disadvantageous to Democrats. So much for voting rights protection.
Case closed? Hardly. Even though the White House begged for fast-track consideration by SCOTUS, claiming the task of printing the forms MUST begin by July 1, Roberts refused to hold them to this deadline. Even though he suggested the government had been less than truthful. “Altogether, the evidence tells a story that does not match the explanation the Secretary (Wilbur Ross) gave for his decision.” But instead of ordering Commerce to “start the presses,” since its deadline was a mere 72 hours away, Roberts remanded the case back to the District Court in New York. Translation? “See if you can come up with a LESS contrived rationale.”
Redo #1 has also failed. With the deadline before them, Commerce attorneys announced there was no justifiable reason to go back to the District Court. The fight was over. Silly lawyers. They forgot who was their ultimate boss. And when Trump ordered them to go back to court, they refused (knowing their personal integrity before the bar might be jeopardized) and were replaced with a legal team from the consumer protection division with little or no experience in matters related to the census. But District Judge Jesse Furman rejected the maneuver. He used the government’s own sense of urgency to deny the request, noting Commerce had “previously pushed for the matter to be moved along quickly.”
Redo #2. It is rumored Trump will issue an executive order sometime today to begin printing the 2020 census survey including the citizenship question. Unless Justice Roberts issues an immediate injunction pending judicial review, or better, declares the government has failed to respond to the Court’s previous ruling, we can add Article III (i.e. authority of federal courts) to the Constitutional scrap heap accumulating on the South Lawn of the White House.
Now this may be bad for the nation, but look on the bright side. There is now legal precedent average citizens can cite when when they bump up against the law. Consider the following conversation between a police officer and a driver having been pulled over for speeding.
Officer: You were going 90 miles per hour in a 55 mile per hour zone.
Driver: Can’t be. I had speed control set at 57.
Officer: You expect me to believe such a contrived explanation? I have this “snapshot” device. I can plug it into your car and it will tell me how fast you were going and if the speed control was engaged.
Driver. Okay. But according to the Supreme Court in New York v. Department of Commerce, I have the right to come up with a less contrived explanation. Maybe if I switch cars and you clock me again, you’ll see I wasn’t speeding.
Officer: The District Court in New York says you have to stick with the car that brought you. Sorry.
Driver: Okay. Give me the ticket. But don’t expect me to pay it. I’ll issue a personal executive order that says I can ignore it.
Officer: (Laughing) Who do you think you are? Donald Trump?
We were taught in civics class, “Justice is blind.” Now it appears to also be deaf and dumb. But I am sure not SO deaf, dumb and blind as pinball wizard Tommy that the next time any of us request a legal do-over based on Supreme Court precedent in New York v. Department of Commerce, we will be laughed out of the courtroom. As well we should.
For what it’s worth.
Dr. ESP