Monday, July 08, 2019

"Fool me twice...won't get fooled again!"



Long on speculation, short on facts (or even appellate procedure), Dahlia Lithwick thinks Trump will get before the Supremes again to demand his "citizenship question" be placed on the 2020 Census.  It's worth noting here that even Trump knows the presses are rolling.  He's argued he could insert the question by an "executive order" via a page added to the census questionnaires, an appendix of a sort.

Imagine just the logistics of that, aside from the legal questions.  Even Lithwick agrees an EO is a non-force in this situation, but she thinks Trump can get before the Supremes again.  Let's examine that, shall we?

First, the DOJ represented to the Supreme Court that June 30 was the deadline, the absolute limit, the drop dead date, for deciding this issue, and so it leapfrogged from the New York district court to the Supreme Court, bypassing the appellate court altogether.  It is well past June 30, and the government is insisting it have its way, even down to delaying the Census (which Trump has no statutory authority to do).  If Trump demands his Secretary of Commerce halt the roll out of the Census in January of next year, it will be his Saturday Night Massacre.

Second, the case is back in the New York trial court, where the DOJ doesn't know whether to shit or go blind.  They can't file a motion with the Supreme Court because the Court won't re-hear the case; at best, they will clarify what they expect from the trial court.  There is no deadline for the trial court to act (and there's a motion for sanctions threatened that may yet come down), so when the trial court enters a final ruling, the DOJ will have to go to the appellate court it bypassed.  That is, unless the Supreme Court wants to accept the supreme embarrassment of being fooled again about "deadlines" and the "need for haste."  "Fool me once, shame on you; fool me twice....won't get fooled again!," as W. said.  Yeah, I don't see the Court jumping through hoops for Trump's lawyers this time.

Third, there's the Maryland case.  That was on appeal to the 4th Circuit when plaintiffs showed up with new evidence of racist intent in the question.  That's a serious enough charge, and the evidence is apparently substantial enough on its face, that the appellate court took the unusual step of telling the trial court to reopen the case and hear this new evidence.  That was the case that led to the telephone hearing and ruling just last week.  That case is on a 45 day schedule, of which about 10 days have elapsed already.  By sometime in mid-August a ruling on that issue will be back before the 4th Circuit, which will have to allow for new arguments (or have they had arguments already?  I honestly don't know) by both sides, with time for filing of briefs and reply briefs, etc.  Rules of Procedure set that schedule, and it won't mean arguments and ruling by the end of August; more likely it means arguments in October, at the earliest.  Then there has to be a ruling, and a stab at a rehearing by the full court, before it can proceed up to the Supremes (again, assuming the Court doesn't bite at the "emergency" cry, again).  Cries of "deadlines" from the DOJ will likely fall on deaf ears, now.  Nor are the Supremes likely to reach down and snatch that case away from the 4th Circuit; not this time.

This is the ticking time bomb of these cases.  If racial animus is found, if racial intent is established in asking the question (everything else has been a pretext so far, and that wasn't good enough), this is constitutional kryptonite.  The question is dead, and it is radioactive.  Unless the Supremes want to overturn that finding by a twist of law (literally a technicality), the citizenship question for this census is verboten.  No wiggle room, no backsies, no more do overs.  Dead.

The odds of that happening are not small, but neither is it a sure thing.  Still, if it happens. asking the Court to clarify its ruling in the New York case becomes moot.  Even if the Court says the question can be allowed on the facts in the New York case, the Maryland case could upend that ruling.  And if you think the Supremes are going to rule in one case again, with the other potentially much more important still working its way through the system, you don't understand the appellate system at all.  The Court took the New York case on an emergency basis and slapped it back down as, basically, too soon brought up.  They won't grab it again while the Maryland case is pending, at trial court or on appeal.  They will probably want to merge the cases, for judicial economy.

That's not going to happen before October.  It's not even likely to happen before January, when both cases become moot.  The Court is not going to stop the Census to satisfy Trump, any more than it's going to ignore a question of racial animus (if proven in lower courts) to give Trump what he wants.  Which means this issue is as dead as the proverbial door-nail.

This isn't Trump v. Roberts; this is Trump v. reality,  The lawyers who left the Maryland case bailed out because they couldn't make Trump's argument.  Trump's argument on appeal in the detention center cases is that toothpaste and soap are not basic to sanitation.  Does he have a better argument in the census question cases?

Addendum:  and then Bill Barr spoke, today:

“I think over the next day or two you’ll see what approach we’re taking,” Barr told reporters after touring a federal prison in South Carolina, according to the Post and Courier. “[A]nd I think it does provide a pathway for getting the question on the census.”

So far, what the DOJ has said in court (where it counts) is this:



Oh, and this:

MR. DUKE: Your Honor, this is Ben Duke for the Kravitz plaintiffs. Could we ask what happened to the Government's repeated representations, including to the United States Supreme Court, which the Supreme Court relied on, that June 30th was an absolute deadline and that they needed to have this finalized and to move forward as of that date? Because what we've now heard from the defendants is that that wasn't true, that they now think that they can even dither over the July 4th weekend and ask for more time to examine this and possibly make a further motion to the Supreme Court for instructions on how to eventually undercut what the Supreme Court has already decided. It is completely inconsistent with the positions that they've been taking.
And what Barr's talking about sounds rather like this Hail Mary the lawyers mentioned to the Maryland judge:

That one involves once again muscling into the Supreme Court's docket to get a ruling before January that can guide the litigation in their favor, again before January.  But based simply on what Ben Duke said above, plus the unheard of withdrawal of two DOJ lawyers to be replaced by lawyers-to-be-named-later (!), the likelihood of the Court taking this particular matter up again anytime soon is:  nil.

If you widen the focus a bit, it seems like even Barr understand this is a quixotic pursuit:


There are, of course, reasons not to do this, such as making arguments before the court which are not done in good faith; but that's an ethics matter, and Barr has clearly abandoned any notion of legal or public ethics.

Trump, however, thinks the decision left him room to act as he wants:

However, the AP cited a senior official who said President Trump is expected to issue a presidential memorandum to the Commerce Department directing it to include the citizenship question on the 2020 census. Action is expected to be taken in the coming days.
As the New York trial court affirmed, the injunction against doing that is still in place.  So the DOC can't follow Trump's directive without being in contempt of court.  That Saturday Night Massacre may come earlier than predicted.

And let us not forget the New York court was considering a motion for sanctions against the DOJ for withholding the materials that are now the subject of discovery proceedings in Maryland.  That meant litigants may get two bites at that apple, especially if there's nothing in the remand that limits the trial court from considering that new evidence.  And then we have the constitutional issue of racism again, one which could easily render this question radioactive and dead for a very, very long time.

Many a pundit thinks Roberts meant to leave a backdoor to the Administration.  I think, rather, Roberts wanted to turn down the case without slamming down a ruling that once you violate the APA, you're dead in the water.  True, if they could provide a better reason, maybe they could have won; but by their own arguments and representations, it's too late for that now.  And the Court should grant them another emergency hearing why?  And the grounds this time will be really, REALLY true, we mean it this time!?

Sure.  Why not?  Will the Court buy it?  Only if they want to ruin their credibility along with that of the DOJ.

And this is an interesting, late-breaking wrinkle to this case, as well as to the case of "Why Won't Nancy Get Tough?":


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