The U.S. Supreme Court recently overruled the Trump administration’s effort to add a citizenship question to the 2020 census. Three things are apparent: A) There is no census consensus. While the decision was a setback for the administration, the issue isn’t dead, as a similar case is making its way through the lower courts.
B) The nation’s highest court may be “Supreme,” but it’s not always right. In this case, its 5-4 ruling was landmark in its egregiousness.
C) Judicial activism – where a court usurps another branch of government by legislating from the bench – is alive and well. Normally the purview of liberal justices, it is becoming increasing common among so-called “conservative” judges.
Here’s a look at the ramifications should the citizenship question ultimately fail to appear on the census: 1) Under current law, the census must take into account both citizens and non-citizens, including illegal immigrants. It is clearly important to ascertain how many total people are living in America – thus the need to include everyone. But without a citizenship question, the apportionment of congressional seats, as well as subsequent redistricting via redrawing geographical boundaries, would be illegally enacted. The unquestionable result would be granting an unwarranted electoral voice to non-citizens that would affect the sovereign affairs of both the states and nation.
Therefore, the court’s ruling goes against the U.S. Constitution’s provisions that only American citizens are bestowed the right to vote. Spinning it any other way is simply disingenuous.
2) Let’s review Civics 101. There are 435 seats in the House of Representatives, which are apportioned to the states based on the once-every-10-years census. States that gain population are awarded more seats (and electoral votes), whereas those whose population declines (or remains flat) lose congressional districts. The effect is that growing states have more influence via both congressional delegation power and in choosing the president. As clearly expressed in the Constitution, only citizens are permitted to vote, thus ensuring that Americans, and only Americans, hold the power to govern themselves. So by definition, if non-citizens are permitted to be counted in the apportionment aspect of the census, they are being given an equal say. Just as a non-citizen or unregistered voter casting a ballot disenfranchises a legal voter by canceling his or her vote, allowing a non-citizen to be counted for apportionment negates the power of legal citizens. If a city has tens of thousands of noncitizens counted, that municipality will keep or expand its congressional representation – fraudulently. And obviously, if a benefit is awarded to one area, then it must be taken from another. That is as un-American as it gets, since the most fundamental principles of American democracy – self-rule, equal voice via one-person-one-vote, and respect for the rule of law – are jettisoned for purely political reasons.
Many opponents of the citizenship question claim that adding it will reduce the number of illegal immigrants completing the census. That, in turn, would substantially reduce the amount of federal aid – almost $700 billion – that cities and states receive. Such an argument isn’t ludicrous, but a calculated attempt to use illegals to gain more taxpayer money. As discussed in prior columns, any benefits to illegal immigrants is against the law, as it amounts to aiding and abetting lawbreakers. Reform the system via immigration reform, but the law should never be broken simply because it isn’t agreeable, or doesn’t benefit a political party’s agenda. Doing so is anathema to representative democracy.
To recap, not only is allowing non-citizens to be counted in apportionment harmful because it grants them undeserved congressional representation, but ultimately, doing so could tip the outcome of a presidential election. Inanera where margins of electoral victory are increasingly small – Florida was decided by 537 votes in the 2000 election – that is not just a real possibility, but a likely one.
3) The court’s ruling demonstrated that judicial overreach continues unabated – yet another area where the Republican-controlled Congress abdicated its responsibility during President Trump’s first two years. In ruling after ruling – from not allowing the president to rescind executive orders, to striking down travel restrictions from terrorist-laden countries, to interfering in immigration controls – lower courts have been vastly exceeding their authority by intervening where they have no jurisdiction.
A huge frustration has been the administration’s incompetence in dealing with this out-of-control judiciary. Instead of putting judges who make the law – rather than interpret it – on notice that their rulings are unconstitutional and absurd, the administration continues to kowtow to them. Meekly accepting decisions such as the travel ban injunctions and inability to withhold federal funds from sanctuary cities empowers wayward judges to continue ruling egregiously. Let’s not forget that all branches are equal, so why is both the administration and Congress allowing their powers to be subjugated? For a guy who loves to be bold and outlandish, the president isn’t picking a fight with those he most needs to confront: Judges authoring unlawful decisions. Doing so, and articulating why, would be a win-win, policy-wise and politically.
4) One of the great misconceptions among Republicans is that the courts are becoming “more conservative.” Yes, as more Republicans are appointed to the federal judiciary, rulings will move somewhat to the right. But the stark reality is, save for a few true strict constructionalists such as justices Thomas and Alito, most “conservative” judges choose “precedent” – even if precedent is wrong – over ruling correctly. Despite judges being appointed for life, they often issue rulings based on political considerations rather than correct law. The reality is that cultivating an image and desiring to be viewed favorably among the country- club Washington insiders have, in many cases, become oversized influencers in how judges choose their positions.
Take Chief Justice John Roberts. Ever since the retirement of moderate Justice Anthony Kennedy – and the appointment of conservative- leaning Brett Kavanaugh – it seems that Justice Roberts feels compelled to take up the mantle of “restrained moderate” to counter- balance a perceived conservative court. Sorry, John, but that’s not your job, nor the basis for how you should be formulating rulings. If a justice adheres to a particular judicial philosophy, he or she should not deviate from those principles simply to maintain a fashionable image for the court.
National Public Radio nailed the description of Justice Roberts, stating that his conservative leanings are “sometimes at war with his desire toprotect the court’s institutional integrity and its nonpartisan image.” Last time we checked, his sole job was to interpret the law, not worry about image and “institutional integrity”– whatever that means. In striking down the citizenship question, Justice Roberts thought himself capable of entering the minds of President Trump and Commerce Secretary Wilbur Ross, stating that their rationale was “contrived.”
He added that the evidence “showed that the secretary was determined to reinstate a citizenship question from the time he entered office … But agencies must pursue their goals reasonably. Reasoned decision- making under the Administrative Procedure Act calls for an explanation for agency action. What was provided here was more of a distraction.”
The idiocy of that explanation, disguised as high-browed legalese, proves that Justice Roberts cares a hell of a lot more about image than he does in upholding his oath. If he really wants to protect the court’s “institutional integrity,” Mr. Roberts would do well to forget about appearances, and focus on the merits of the census question when he hears the next case.
Otherwise, it will be case closed, and the constitutional rights of every American will be … supremely compromised.
Chris Freind is an independent columnist and commentator. He can be reached at CF@FFZMedia. com Follow him on Twitter @chrisfreind.