OP-ED: Courts confront Trump overreach
The fight is far from over, but a federal court decision Tuesday morning barring the Trump administration from asking about citizenship status on the 2020 census is heartening for those who see the move as a blatant attempt to dampen participation within immigrant-heavy (and Democratic-leaning) communities and thus shift political power — and federal resources — away from them.
More broadly, though, the decision spotlights a recurring theme with the Trump administration: It can’t get basic functions of government right.
From the initial effort to ban people from certain Muslim countries from entering the country to environmental rollbacks to now something as simple as adding a question to the census, Trump’s appointees have tried to run roughshod over laws and practices rather than following proper administrative processes.
The failures seem to have been taken from Trump’s own dog-eared playbook of just forging ahead, damn the consequences, and see what he can get away with.
But here again, the courts have stepped up to block the administration’s overreaches — something the Republican-led Congress failed to do for nearly two years even after Commerce Secretary Wilbur Ross was caught in a lie about how the question came to be added. Ross initially said that the request came from the Justice Department to better arm it with data in pursuing cases, but the suggestion came from Trump’s immigration hard-line advisor Steve Bannon.
Civil rights advocates said from the get-go that the question was unnecessary in bringing voters’ rights actions, something government officials later acknowledged in court.
Bizarrely, the government argued that even if the question was unnecessary, and even if the government’s own experts said it would reduce the accuracy of the census, Ross had wide leeway to, in essence, do whatever he felt like.
“All the secretary is required to do is to provide a reasoned explanation,” Deputy Assistant Atty. Gen. Brett A. Shumate told the court. “He doesn’t have to choose the best option.”
That’s quite the approach to good governance – “Hey, close enough.”
In his 277-page decision, U.S. District Judge Jesse Furman minced no words in castigating Ross’ actions. He defended the role of the Administrative Procedures Act in guiding the government toward sound decisions, and that Ross usurped it (legal citations omitted):
“In short (or not, as the case may be), the Court concludes that Secretary Ross’s decision to add the citizenship question to the 2020 census questionnaire, while not inconsistent with the Constitution, violated the APA in several respects. Those violations are no mere trifles. The fair and orderly administration of the census is one of the Secretary of Commerce’s most important duties, as it is critical that the public have ‘confidence in the integrity of the process.’ And although some may deride its requirements as ‘red tape,’ the APA exists to protect core constitutional and democratic values: It ensures that agencies exercise only the authority that Congress has given them, that they exercise that authority reasonably, and that they follow applicable procedures – in short, it ensures that agencies remain accountable to the public they serve.
“That is not to say — and the APA does not say — that an agency cannot adopt new policies or otherwise change course. But the APA does require that before an agency does so, it must consider all important aspects of a problem; study the relevant evidence and arrive at a decision rationally supported by that evidence; comply with all applicable procedures and substantive laws; and articulate the facts and reasons — the real reasons — for that decision. ... In arriving at his decision as he did, Secretary Ross violated the law. And in doing so with respect to the census — ‘one of the most critical constitutional functions our Federal Government performs’ and a ‘mainstay of our democracy’ — Secretary Ross violated the public trust.”
Yes, he did.