On Thursday, Daily Wire Editor-at-Large Josh Hammer — who is also a constitutional attorney specializing in religious liberty — joined “Tipping Point With Liz Wheeler” on One America News Network (OANN) to discuss the last headline-grabbing case of the U.S. Supreme Court term. The case, Department of Commerce v. New York, dealt with the Trump administration’s attempt to include a question on the upcoming decennial U.S. Census pertaining to citizenship status. Chief Justice John Roberts joined the Court’s liberal bloc to temporarily enjoin the Trump administration from including the question on the census.

Wheeler, describing the ruling as “a disappointment on so many levels,” noted how a question pertaining to citizenship has, with the exception of President Barack Obama’s decision to remove the question in 2010, appeared on either the short- or long-form version of the U.S. Census every decade since the early 19th century.

Hammer minced no words, blasting the “crazy ruling from the Chief” that should be in the “John Roberts Hall of Fame alongside the Obamacare decision” of NFIB v. Sebelius from 2012:

Crazy ruling from the Chief here. It’s funny, I was on with Glenn Beck this morning and what I told Glenn is that I would put this opinion up there in the ‘John Roberts Hall of Fame” right alongside the Obamacare decision. This is classic Chief Justice Roberts — truly classic. The way at the beginning of the opinion, he kind of fools you a little bit, he’s kind of pulling us along — and when this broke on Twitter, with SCOTUSblog, and everyone was live-tweeting … the initial news reminded me a lot of the Obamacare case because in the Obamacare case, we first saw the mandate was actually not going to be upheld on Commerce Clause grounds and it wasn’t until a few minutes later when we realized what the Chief had done in terms of rewriting [the individual mandate] as a tax.

Very similar thing here. Including citizenship question is not foreclosed by either the Constitution or the Census Act — so there’s both constitutional and statutory authority to do what Secretary [Wilbur] Ross and the Trump administration are trying to do, but they are questioning whether the private motives aligned with the publicly stated rationale.

Hammer went on to further lambast Roberts’ opinion as an “insane ruling.” He compared Roberts’ seeming obsession with the relevant Trump administration actors’ private motivations with what some lower federal courts did during the “travel ban” litigation — when some judges cited President Donald Trump’s 2016 campaign-era tweets as indicative of privately held anti-Muslim animus:

It’s an insane ruling. It actually reminds me, kind of, of the so-called “travel ban” litigation, Liz. If you recall, at that time some of these courts like the Fourth Circuit … they were quoting Trump’s tweets from the campaign as if that was some sort of insight into his private motivations … and they were trying to discern whether that was a proper justification.

This is insane. Clarence Thomas … in his dissent from this holding today, basically says we are there to assess the legality of this action. The Court says this is legal and our inquiry stops there.

Wheeler agreed and concluded by noting that the Supreme Court’s “role is only to determine whether” the inclusion of the census question on the Census “falls in line with our Constitution and with our existing law.”


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