Speaking as a lawyer myself: Lawyers are oftentimes annoying. We are oftentimes far more trouble than we are (literally and proverbially) worth. But sometimes — just sometimes — a bit of clever lawyering can truly go a wrong way.
As The Daily Wire reported two weeks ago, the nine robed oracles of the U.S. Supreme Court dealt the Trump administration a substantial legal blow in the case of Department of Commerce v. New York — the case challenging U.S. Commerce Secretary Wilbur Ross’s much-ballyhooed decision to add a question pertaining to citizenship status on the upcoming decennial census, to be held in 2020. The Court held that, though lacking neither constitutional nor statutory support, the administration’s decision to include the citizenship question on the asserted grounds of collecting data for purposes of Voting Rights Act enforcement was “pretextual.” In other words, the Court held that the administration seemed to be harboring an ulterior motive or pernicious agenda, and that this motive or agenda rendered an otherwise-constitutionally and statutorily legitimate census question inclusion “arbitrary and capricious,” and thus invalid.
The Court’s holding in New York was an astonishing breach of the judicial duty. Justice Clarence Thomas excoriated Chief Justice Roberts’ reasoning, decrying it as “the first time ever” that “the Court invalidates an agency action solely because it questions the sincerity of the agency’s otherwise adequate rationale.” Justice Samuel Alito, even more livid, defiantly asserted that “the Federal Judiciary has no authority to stick its nose into the question whether it is good policy to include a citizenship question on the census or whether the reasons given by Secretary Ross for that decision were his only reasons or his real reasons.”
Last Tuesday, the Trump administration seemed to concede the issue, sending the census to the printing press without the inclusion of the citizenship question. Yet only a day later, the president seemed to reverse course. The relevant legal question, moving forward, is therefore whether Secretary Ross and the Trump administration can proffer a non-Voting Rights Act enforcement legal justification that would persuade the relevant denizens of our “least dangerous branch” that the citizenship question’s inclusion is wholly proper — and ideally, even necessary.
I began trading ideas last week with some friends about what this new legal rationale might look like. One friend had a brilliant suggestion that struck me as both innovative and textually ironclad: Utilize the infrequently invoked second section of the Fourteenth Amendment, which seems to mandate that the federal government have data pertaining to the state-by-state numbers of (male and aged over 21 years old) citizens for purposes of apportionment and congressional representation. The next thing I knew, David B. Rivkin Jr. and Gilson B. Gray wrote it up on Friday as a Wall Street Journal op-ed.
Consider the relevant Fourteenth Amendment Section 2 text, with emphasis in bolded italics: “But when the right to vote … 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.” Broken down into plain English, then, the Fourteenth Amendment’s remedy for a state’s abridging the right to vote for its male citizens aged 21 or over is congressional reapportionment wherein that abridging state loses representation based on a textually mandated formula — a two-variable formula, that is, where each variable requires citizenship data.
This is not just a legal justification for the Trump administration to include the citizenship question on the census. It is an affirmative constitutional mandate. indeed, as Rivkin and Gray state, “The Constitution itself requires the collection of citizenship information.” And “[c]ompliance” with the mandate, as they write, “is impossible without counting how many citizens live in each state.” It is really that simple: All it would take, legally speaking, is an executive order from President Trump stating that the inclusion of the citizenship question on the U.S. Census is necessary to comply with the clear constitutional demands of Section 2 of the Fourteenth Amendment.
This is a textually clear argument. There is no “pretext” here — and certainly no room for overzealous judicial chicanery. The Trump administration should pursue this legal route.