A new report states that Supreme Court Chief Justice John Roberts’ deciding vote in the Supreme Court’s decision against adding a citizenship question to the 2020 census was eerily reminiscent of his 2012 deciding vote that rescued Obamacare; Roberts seemed firmly in the camp of conservatives on the court before he suddenly switched his vote to join the four liberals on the court.
<a href="https://www.cnn.com/2019/09/12/politics/john-roberts-census-citizenship-supreme-court/index.html">CNN</a> reports that when the justices on the court first heard arguments in the case in late April, Roberts was on the side of Commerce Secretary Wilbur Ross and the Trump administration. During <a href="https://www.cnn.com/2019/04/23/politics/census-supreme-court-dept-of-commerce-new-york/index.html">oral arguments on April 23</a>, Roberts stated, &#8220;We&#8217;ve had demographic questions on the census — I don&#8217;t know how far back, but, certainly, it&#8217;s quite common. &#8230; Sex, age, things like that. &#8230; Do you own your house? Do you own a radio? I mean, the questions go quite beyond how many people there are … The CVAP, Citizen Voting Age Population, is the critical element in voting rights enforcement, and this is getting citizen information.&#8221;
Justice Elena Kagan insisted Ross’ reasons were &#8220;contrived,&#8221; saying, &#8220;You can&#8217;t read this record without sensing that this need is a contrived one.&#8221; Ross had reasoned that the question was necessary in order to enforce the 1965 Voting Rights Act.
Roberts began to veer from his position.
Prior to the Supreme Court’s decision, U.S. District Court Judge Jesse Furman had ruled against Ross, writing, &#8220;[P]erhaps most egregiously, the evidence is clear that Secretary Ross&#8217;s rationale was pretextual — that is, that the real reason for his decision was something other than the sole reason he put forward in his Memorandum, namely enhancement of DOJ&#8217;s VRA enforcement efforts.&#8221;
After the Trump administration appealed the ruling on the basis that census forms had to be printed by the summer, the Supreme Court voted 5-4 against the Trump administration on July 27.
In the <a href="http://cdn.cnn.com/cnn/2019/images/06/27/census.pdf">Supreme Court’s ruling</a>, it was admitted that “The Enumeration Clause permits Congress, and by extension the Secretary, to inquire about citizenship on the census questionnaire. That conclusion follows from Congress’s broad authority over the census, as informed by long and consistent historical practice that &#8216;has been open, widespread, and unchallenged since the early days of the Republic.'&#8221; The decision also noted, &#8220;The District Court also erred in ruling that the Secretary violated two particular provisions of the Census Act.&#8221;
In his 29-page ruling, Roberts spent the first 24 pages seemingly siding with the administration; he wrote, &#8220;The Enumeration Clause of the Constitution does not provide a basis to set aside the Secretary’s decision.&#8221; But in the last five pages of his ruling, he stated, &#8220;We share the District Court’s conviction that the decision to reinstate a citizenship question cannot be adequately explained in terms of DOJ’s request for improved citizenship data to better enforce the VRA. Several points, considered together, reveal a significant mismatch between the decision the Secretary made and the rationale he provided.&#8221;
Meanwhile, Justice Clarence Thomas, joined by Justices Neil Gorsuch and Kavanaugh, issued a blistering dissent, writing:
<blockquote>For the first time ever, the Court invalidates an agency action solely because it questions the sincerity of the agency’s otherwise adequate rationale. Echoing the din of suspicion and distrust that seems to typify modern discourse, the Court declares the Secretary’s memorandum &#8220;pretextual&#8221; because, &#8220;viewing the evidence as a whole,&#8221; his explanation that including a citizenship question on the census would help enforce the Voting Rights Act (VRA) &#8220;seems to have been contrived.&#8221; The Court does not hold that the Secretary merely had additional, unstated reasons for reinstating the citizenship question. Rather, it holds that the Secretary’s stated rationale did not factor at all into his decision.</blockquote>
Thomas continued, &#8220;The Court’s holding reflects an unprecedented departure from our deferential review of discretionary agency decisions. And, if taken seriously as a rule of decision, this holding would transform administrative law.&#8221; He wrote bitingly, “Unable to identify any legal problem with the Secretary’s reasoning, the Court imputes one by concluding that he must not be telling the truth.&#8221;
Thomas warned:
<blockquote>The law requires a more impartial approach. Even assuming we are authorized to engage in the review undertaken by the Court—which is far from clear—we have often stated that courts reviewing agency action owe the Executive a &#8220;presumption of regularity.&#8221; … The Court pays only lipservice to this principle. But, the evidence falls far short of supporting its decision. The Court, I fear, will come to regret inventing the principles it uses to achieve today’s result.</blockquote>
Although Roberts&#8217; decision left Ross an opportunity to come up with another rationale for adding the citizenship question, time was running out, so on July 11 Trump announced he was dropping the idea.​
As Joan Biskupic, a Supreme Court biographer, <a href="https://www.cnn.com/2019/03/21/politics/john-roberts-obamacare-the-chief/index.html">has written </a>about Roberts&#8217; switch on Obamacare:
<blockquote>Roberts&#8217; moves behind the scenes were as extraordinary as his ruling. He changed course multiple times. He was part of the majority of justices who initially voted in a private conference to strike down the individual insurance mandate &#8212; the heart of the law &#8212; but he also voted to uphold an expansion of Medicaid for people near the poverty line. Two months later, Roberts had shifted on both.</blockquote>

John Roberts

Report: Just Like Obamacare, SCOTUS’ Roberts Switched On Citizenship Census Question

Donald Trump

Supreme Court

Wilbur Ross

On Tuesday, Daily Wire Editor-at-Large Josh Hammer — who is also a constitutional attorney specializing in religious liberty — <a href="https://www.youtube.com/watch?v=AgB0ycTAbYI">joined</a> &#8220;Tipping Point With Liz Wheeler&#8221; on One America News Network (OANN) to discuss a <a href="https://www.dailywire.com/news/49234/hammer-here-legal-reason-why-trump-must-ask-about-josh-hammer">Daily Wire op-ed</a> he had written earlier this week about the legal fallout from the U.S. Supreme Court&#8217;s census citizenship question decision in <a href="https://www.scotusblog.com/case-files/cases/department-of-commerce-v-new-york/">Department of Commerce v. New York</a>.
In Department of Commerce, Chief Justice John Roberts joined the Court&#8217;s liberal bloc to temporarily enjoin the Trump administration from including the citizenship question on the census. But as Hammer argued in his op-ed, there appears to be an obscure constitutional rationale, buried in the text of the little-used second <a href="https://www.law.cornell.edu/constitution/amendmentxiv">section of the Fourteenth Amendment</a>, that may actually require the president to include the citizenship question on the census.
Here is the the relevant text of the second section of the Fourteenth Amendment, with emphasis in bolded italics: &#8220;But when the right to vote &#8230; is denied to any of the male inhabitants of such state, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such state.&#8221;
Hammer explained to Wheeler why this textual provision is so important for the Trump administration&#8217;s continuing efforts to include the citizenship question on the census.
<blockquote>&#8230; The Fourteenth Amendment is probably the most frequently invoked amendment for constitutional litigation, in general, but probably &#8230; 97% to 98% of that litigation is in Section 1 of the Fourteenth Amendment. There are actually five sections. Section 1 involves all the clauses that people are familiar with: It&#8217;s the Equal Protection Clause, the Due Process Clause — all the clauses that you hear about. &#8230;
But there&#8217;s actually five sections and Section 2 is just as legally effective as Section 1, by definition &#8230; and what Section 2 of the Fourteenth Amendment very clearly says is that when a state abridges the right to vote for a certain subset of male, 21-year-old citizens, then there&#8217;s a penalty for that. You can&#8217;t do that, and &#8230; the formula for the penalty is that you have reduced representation in Congress from the next census. And the formula for determining that reduced representation is a fraction, where both [numbers] require citizen-by-citizen data. &#8230; Essentially, your representation is reduced by the proportion of who is is denied this right to vote — male 21-year-old citizens [who have their vote abridged] divided by the total number of male 21-year up citizens. &#8230;
[F]rom a very plain English standpoint, &#8230; the Constitution literally says that we need to know if there are 21-year-old male citizens in a state who are having their right to vote abridged, and it is the word &#8220;shall&#8221; that is used. In lawyer world, the word &#8220;shall&#8221; means the same thing that it means in plain English world: It is a direct affirmative mandate. This is not like a wishy-washy m-a-y &#8220;may,&#8221; it is &#8220;shall.&#8221;</blockquote>
From a constitutional perspective, then, &#8220;we literally need to know the number of citizens in each state for possible penalization of a state for abridging the right to vote for its male 21-year-old citizens,&#8221; he continued.
Hammer concluded his thoughts to Wheeler by discussing what the next legal steps for the Trump administration should be. Hammer urged that President Trump issue a straightforward executive order that unilaterally invokes the second section of the Fourteenth Amendment as justifying — indeed, mandating — the inclusion of the citizenship question on the census.
<blockquote>I mean the words are very clear. The word &#8220;shall&#8221; means &#8220;shall&#8221;: It is an affirmative obligation that the federal government have this data. So what Trump should do is actually very straightforward. I hope his lawyers are watching this. All you need to do is issue an executive order literally invoking Section 2 of the Fourteenth Amendment and saying that, &#8220;Pursuant to the constitutional authority vested in me, I, President Donald Trump, hereby require that citizenship data be include in the next census.&#8221; It&#8217;s really that simple.</blockquote>
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WATCH: Hammer On ‘Tipping Point With Liz Wheeler’: Why Trump MUST Ask About Citizenship On The Census

Constitution

Fourteenth Amendment

Lawsuit

Trump Administration

Four individuals directly involved in the process to reinstitute the citizenship question on the 2020 census have testified to Congress that senior members of the White House had no influence on Department of Commerce Secretary Wilbur Ross&#8217; decision to include the question.
This testimony refutes claims from Democrats on the House Oversight and Reform Committee, led by Chairman Elijah Cummings (D-MD), that President Donald Trump and/or his trusted advisers wanted the question included for nefarious reasons. The transcripts of this testimony were released by Rep. Jim Jordan (R-OH), ranking member on the House Oversight Committee, Tuesday afternoon.
Cummings and the committee adopted a resolution on June 12 to hold U.S. Attorney General William P. Barr and Ross in contempt for allegedly refusing to hand over documents related to the reinstitution of the citizenship question. To date, Jordan wrote in his &#8220;<a href="https://republicans-oversight.house.gov/release/new-witness-testimony-debunks-democrats-conspiracy-theories-on-census-citizenship-question/">Minority Views</a>&#8221; report, the Department of Justice has released 17,000 pages related to the decision and the DOC has release 14,000 pages. Jordan wrote that there was &#8220;no reason to believe that the DOC and DOJ would not continue to cooperate with the Committee&#8217;s investigation,&#8221; had it not been for Cummings &#8220;decision to abruptly cease the constitutionally mandated accommodation process&#8221; and hold Barr and Ross in contempt.
Jordan also noted that context has been missing from the decision to reinstate the citizenship question:
<blockquote>
A question soliciting citizenship information appeared on the census in one form or another from 1820 to 2000 and has been asked annually on the Census Bureau&#8217;s American Community Survey since 2005. Other nations request citizenship information as part of their population surveys, which the United Nations recommends as a best practice. Information solicited as a part of the census is protected from dissemination by federal law.
</blockquote>
Included in Jordan&#8217;s report is sections of testimony from four individuals &#8212; Principal Deputy Assistant Attorney General John Gore, Counselor to the Attorney General Gene Hamilton, former senior counsel at the DOC James Uthmeier, and former Kansas Secretary of State Kris Kobach &#8212; who all contradict Cummings claims.
For example, Democrats have insisted that Republican strategist Thomas Hofeller, now deceased, was heavily involved in the decision to include the citizenship question. Hofeller, according to court documents that are part of a lawsuit against the DOC over the question (that is now before the Supreme Court), may have ghostwritten part of a DOJ letter for A. Mark Neuman, who in turn gave that letter to Gore.
The meat of the argument is that Hofeller conducted a study in 2015 for The Washington Free Beacon that found using the citizen voting age population &#8212; as opposed to the adult population or total population &#8212; would benefit Republicans and that this was the real basis for Ross including the question in the upcoming census.
In their testimony, Hamilton, Kobach, and Uthmeier all said they didn&#8217;t know who Hofeller was and never spoke to him. Uthemeier said he had never seen anything Hofeller wrote and only discussed him once &#8212; in preparation for his testimony. Hamilton said he had &#8220;no idea&#8221; who Hofeller was. Kobach said he didn&#8217;t &#8220;recall ever meeting or talking with anyone by that name,&#8221; but that he had read an article about him the day before. Kobach also testified that he had never heard of the 2015 study by Hofeller or any similar study. Kobach also disagreed with Hofeller&#8217;s conclusion that Republicans would be helped by changing redistricting rules to exclude noncitizens.
&#8220;I don&#8217;t agree with his assumption that when you count &#8212; when you count accurately the number of citizens, that that necessarily helps one party or another party. We don&#8217;t know,&#8221; Kobach testified.
Gore in his testimony repeated the DOJ position that the question would be used to help enforce the Voting Rights Act.
&#8220;We would like to get an additional source of data because there may be districts or cases out there where that data provides a clearer picture of what&#8217;s going on at the block level and within a particular district or redistricting plan, and we might be able to identify additional cases for investigation and potential prosecution,&#8221; Gore said.
Gore also said in his testimony that he did not interact with the senior Trump administration officials identified by House Democrats as conspiring to include the question in the census. Specifically, he said he was not aware of any conversations between then-Attorney General Jeff Sessions and former White House Adviser Steve Bannon about the question, nor was he aware of any conversation between Kobach and anyone else at the DOJ about the question.
Further, Gore said he had &#8220;never spoken to Mr. Bannon in my life,&#8221; nor had he spoken to White House policy adviser Stephen Miller. He said he had only spoken to Thomas Brunell, who was originally tapped to be director of the U.S. Census Bureau, over a voting rights case back when he was in private practice.
Uthmeier testified that he never spoke to Bannon, Miller, Reince Priebus, or Trump about the citizenship question. Hamilton also denied speaking to anyone at the White House about the census question.
Kobach also denied speaking to the Republican National Committee about the question.
Jordan accused Democrats of choosing &#8220;conflict over compromise&#8221; in holding Barr and Ross in contempt instead of continuing to work with them to obtain documents related to the citizenship question&#8217;s inclusion in the census.

Multiple Sources Involved In Decision To Reinstate Citizenship Question On Census Testified White House Wasn’t Part Of Discussions

Jim Jordan

William Barr

On Friday, Commerce Secretary Wilbur Ross, who is a billionaire, appeared on CNBC&#8217;s <a href="https://www.cnbc.com/2018/03/02/commerce-secretary-wilbur-ross-trump-tariffs-will-have-a-broad-but-trivial-impact-on-prices.html">Squawk on the Street</a> to defend steel and aluminum tariffs he has <a href="https://www.axios.com/commerce-trade-section-232-tariffs-steel-aluminum-8d4fbe71-1f9b-4918-96af-6437487a69f0.html">promoted.</a> While he was interviewed, he displayed his utter ignorance of political optics, holding up a can of Campbell&#8217;s soup to illustrate what he called the &#8220;broad,&#8221; but &#8220;trivial&#8221; consequences of implementing price tariffs.
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<blockquote class="twitter-tweet" data-lang="en">
Wilbur Ross: &#8220;I just bought this can today at a 7-Eleven &#8230; and it priced at a $1.99. Who in the world is going to be too bothered?&#8221; <a href="https://t.co/AQDzfQuHZK">pic.twitter.com/AQDzfQuHZK</a>
&#8212; Nathaniel Meyersohn (@nmeyersohn) <a href="https://twitter.com/nmeyersohn/status/969614737788035072?ref_src=twsrc%5Etfw">March 2, 2018</a></blockquote>
</div>
Ross began, &#8220;This is not the first time we&#8217;ve put tariffs on steel; we have tariffs on many forms of steel. The reason we&#8217;ve had to go this route is that the conventional trade methods don&#8217;t solve the problem of systemic global overcapacity and global dumping. You put a tariff on it coming from one country, they try to ship it through another one. So it has to be broad, it has to be global in its reach in order to solve the fundamental problem.&#8221;
Holding up the can, Ross opined, &#8220;This is a can of Campbell&#8217;s soup. In a can of Campbell&#8217;s Soup, there are about 2.6 pennies worth of steel. So if that goes up by 25%, that&#8217;s about six-tenths of 1 cent on the price of a can of Campbell&#8217;s Soup. I just bought this can today at a 7-Eleven down here, and the price was $1.99. So who in the world is going to be too bothered is going to be bothered by six-tenths of a cent?&#8221;
After holding up a can of Coke and going through a similar procedure, Ross concluded, &#8220;All this hysteria is a lot to do about nothing.&#8221;
There have been plenty of critics of implementing steel tariffs. As <a href="https://www.usatoday.com/story/money/economy/2018/03/02/q-how-trumps-tariffs-could-affect-people-and-companies/388136002/">USA TODAY reports</a>:
<blockquote>
The American International Automobile Dealers Association said it fears that the tariffs would send car prices up &#8220;substantially.&#8221; U.S. auto sales plateaued in 2016 at 17.5 million vehicles a year. &#8230; &#8220;You start throwing in higher prices from more expensive steel for automakers &#8212; that&#8217;s going to start to pile on multiple factors that could really slow down U.S. car sales,&#8221; says Karl Brauer, executive publisher for Kelley Blue Book.
</blockquote>
As far as helping the steel companies, Mark O&#8217;Hara noted at <a href="https://marketrealist.com/2018/02/does-the-us-steel-industry-really-need-duties-now">Market Realist</a>:
<blockquote>
Despite the slowdown in steel prices in 4Q17, steel companies posted higher earnings. Steel Dynamics (<a href="https://marketrealist.com/quote-page/STLD">STLD</a>) reported record operating income last year, and Nucor&#8217;s (<a href="https://marketrealist.com/quote-page/NUE">NUE</a>) 2017 earnings were its highest since 2008, when the steel industry was at its cyclical peak. U.S. Steel&#8217;s (<a href="https://marketrealist.com/quote-page/X">X</a>) 2017 earnings were also its highest since 2014.
</blockquote>
But Ross attacked critics of the implementation of tariffs: &#8220;I think this is scare tactics by the people who want the status quo, the people who have given away jobs in this country, who have left us with an enormous trade deficit, and one that&#8217;s growing. It grew again last year, and if we don&#8217;t do something, it will keep growing and keep destroying American jobs.&#8221;

LET THEM EAT SOUP: Commerce Secretary Ross Holds Up Campbell’s Soup Can To Defend Steel Tariffs

Free Trade

On Wednesday, speaking at a rally in Iowa, President Trump had an <a href="http://thehill.com/homenews/administration/338912-trump-i-just-dont-want-a-poor-person-in-top-economic-roles">amusing comment</a> to make about why he had chosen Commerce Secretary Wilbur Ross, who is quite wealthy, for his position. Trump stated:
&#8220;Somebody said, &#8216;Why did you appoint a rich person to be in charge of the economy?&#8217; No, it&#8217;s true. And Wilbur&#8217;s a very rich person in charge of commerce. I said, &#8216;Because that&#8217;s the kind of thinking we want &#8230; because they&#8217;re representing the country. They don&#8217;t want the money.&#8217;&#8221;
Trump added that members of his Cabinet had to &#8220;give up a lot&#8221; to take their jobs, calling them &#8220;great, brilliant business minds &#8230; And that&#8217;s what we need. That&#8217;s what we have to have so the world doesn&#8217;t take advantage. We can&#8217;t have the world taking advantage of us anymore. And I love all people, rich or poor, but in those particular positions, I just don&#8217;t want a poor person. Does that make sense?&#8221;
Trump allowed that if his supporters &#8220;insist&#8221; he alter his position, he would, but slyly added, &#8220;But I like it better this way.&#8221;
According to <a href="v">Bloomberg</a>, Ross is worth $2.9 billion.
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WATCH: Trump Explains Why He Doesn’t Want a ‘Poor Person’ Running The Economy. It’s Pretty Funny.

In an interview with CNBC Monday, Secretary of Commerce Wilbur Ross celebrated the fact that there were no protesters in Saudi Arabia during his visit to the Islamic monarchy over the weekend. Venturing out of his comfort zone, Ross decided to discuss something other than finance and economics with CNBC anchor Becky Quick. But given the appalling amount of ignorance on display, Ross is likely regretting his decision right about now.
After sharing his observations about Saudi meetings and panels on the stock market and venture capitalism, the commerce secretary began suggesting that the Saudis are “liberalizing their society.”
Pointing to the appointment of a woman as “the head of stock exchange in that region,” Ross then bloviated about failing to see a “single hint of a protester anywhere.”
“And I think the other thing that was fascinating to me, there was not a single hint of a protester anywhere there during the whole time we were there,” Ross told his interviewer. “Not one guy with a bad placard.”
Um. So there’s a pretty good reason why there were no protesters, sir. Maybe the lack of protests had a little something to do with the fact that the Saudis kill dissidents, activists, and human rights protesters like cattle at a slaughter house? You know, capital punishment is one heck of a deterrent.
As Ross’ own interviewer pointed out, the lack of visible protests in Saudi Arabia “may be because they control people and don’t allow them to come and express their feelings.” ‘
That’s an understatement. Saudi Arabia is one of worst human rights violators in the world. In a kingdom that functions more like a feudal monarchy than a modern nation-state, dissent is quickly crushed.
Human Rights Watch <a href="https://www.hrw.org/middle-east/n-africa/saudi-arabia">reports</a>:
<blockquote>Saudi authorities in 2017 continued to arbitrarily arrest, try, and convict peaceful dissidents. Dozens of human rights defenders and activists are serving long prison sentences for criticizing authorities or advocating political and rights reforms. Authorities systematically discriminate against women and religious minorities. In 2016, Saudi Arabia carried out 154 executions, 23 for non-violent drug crimes. On January 2, 2016, Saudi Arabia executed 47 men for terrorism-related offenses, including prominent Shia cleric Nimr al-Nimr, who was convicted following a deeply flawed trial.</blockquote>
For weeks now, Trump administration officials have been misspeaking, providing false information, or pretending that reality-contradicting narratives can begin to be adorned with truth as long as they’re repeated enough times.
Granted, Ross may want to whitewash Saudi Arabia’s moral landscape to strengthen the administration’s diplomatic relationship with the Kingdom; but this time he may have gone a little too far, straining the sinews of credulity until they tore apart.