The Supreme Court heard oral arguments on Tuesday in a case that should have been a slam dunk against the Trump administration. Secretary Wilbur Ross wants to modify the 2020 census form in a way that will depress responses from immigrant communities — effectively shifting congressional representation away from Latinos and towards white voters who are more likely to favor Republicans. In doing so, Ross broke numerous laws, ignored the Census Bureau’s own experts, and openly lied about his motives.
And yet, at Tuesday’s oral argument, the Supreme Court appeared likely to vote along party lines to endorse Ross’ lawbreaking.
So it’s probably not a coincidence that President Trump claimed less than a day after arguments in Department of Commerce v. New York that the highest court in the land is his personal team of fixers.
The Mueller Report, despite being written by Angry Democrats and Trump Haters, and with unlimited money behind it ($35,000,000), didn’t lay a glove on me. I DID NOTHING WRONG. If the partisan Dems ever tried to Impeach, I would first head to the U.S. Supreme Court. Not only……
— Donald J. Trump (@realDonaldTrump) April 24, 2019
Trump is wrong that the Supreme Court may lawfully intervene if the House of Representatives chooses to impeach him. As the Supreme Court explained in Baker v. Carr, courts should not weigh in at all on legal disputes where there is a “textually demonstrable constitutional commitment of the issue to a coordinate political department” — that is, when the Constitution explicitly states that a branch of government other than the judiciary is supposed to resolve the dispute.
Meanwhile, the Constitution gives the House “the sole power of impeachment” and provides that “the Senate shall have the sole power to try all impeachments.” It’s hard to imagine a more clear cut case of a “textually demonstrable constitutional commitment” of an issue to someone other than the judiciary.
Indeed, the Supreme Court reached this exact same conclusion in Nixon v. United States, a case involving a disgraced federal judge who objected to the process the Senate used to try his impeachment.
We think that the word “sole” is of considerable significance. Indeed, the word “sole” appears only one other time in the Constitution—with respect to the House of Representatives’ “sole Power of Impeachment.” The commonsense meaning of the word “sole” is that the Senate alone shall have authority to determine whether an individual should be acquitted or convicted. The dictionary definition bears this out. “Sole” is defined as “having no companion,” “solitary,” “being the only one,” and “functioning . . . independently and without assistance or interference.” If the courts may review the actions of the Senate in order to determine whether that body “tried” an impeached official, it is difficult to see how the Senate would be “functioning . . . independently and without assistance or interference.”
So a Supreme Court decision weighing in on whether the House properly impeached Mr. Trump would be utterly lawless. The House has the “sole” power to decide which officials should be impeached, and the Senate has the “sole” power to determine whether the charges brought by the House warrant removal from office. As the court held in Nixon, “the Judiciary, and the Supreme Court in particular, were not chosen to have any role in impeachments.”
The problem, however, is that this Supreme Court seems to think that that the law is optional when the Trump administration is involved. The most recent example is the oral argument in New York — but consider as well the Roberts Court’s decision in Trump v. Hawaii, the Muslim Ban case.
“The clearest command of the Establishment Clause,” as Justice Elena Kagan recently explained in an opinion dissenting from this Supreme Court’s refusal to afford basic constitutional rights to a different Muslim litigant, “is that one religious denomination cannot be officially preferred over another.”
As a presidential candidate, Trump bragged about his plans for “total and complete shutdown of Muslims entering the United States until our country’s representatives can figure out what is going on.” After he was criticized for such direct statements, Trump spoke openly about how he planned to disguise his Muslim ban as something else. “People were so upset when I used the word Muslim,” Trump told Meet the Press in 2016, “and I’m okay with that, because I’m talking territory instead of Muslim.”
Trump’s plan, in other words, was to come up with a list of predominantly Muslim nations and ban people from those nations from entering the United States. As Trump attorney Rudy Giuliani explained:
So when [Trump] first announced it he said, “Muslim ban.” He called me up and said, “Put a commission together, show me the right way to do it legally.” . . . And what we did was we focused on, instead of religion, danger. The areas of the world that create danger for us. Which is a factual basis. Not a religious basis. Perfectly legal, perfectly sensible, and that’s what the ban is based on.
Trump didn’t just brag about his intention to violate the Constitution. He communicated the specific pretext he would use to make this violation appear legal. And then his personal attorney went on Fox News and laid out how this deception would work.
And yet the Supreme Court upheld the Muslim ban, with Chief Justice John Roberts emphasizing that “any rule of constitutional law that would inhibit the flexibility” of the President “to respond to changing world conditions should be adopted only with the greatest caution.”
Donald Trump knows little about policy and has indicated that he doesn’t care to learn more. But many of the lawyers who surround him — Attorney General William Barr, White House Counsel Pat Cipollone, Solicitor General Noel Francisco — are among the savviest attorneys in the country. They are smart enough to know that Trump’s Muslim ban is unconstitutional. And they are smart enough to know that the Trump administration has no business prevailing in the Census case.
They are smart enough to understand, therefore, that the Supreme Court is signaling very loudly that the law does not apply to this president. And so it shouldn’t surprise anyone that Trump also thinks that the Supreme Court will save him from impeachment. He’s probably just listening to the advice of his counsel.
And, just in case there is any doubt, the implications of this lawlessness stretch far beyond impeachment. If the Supreme Court won’t apply the Constitution to something as transparently unconstitutional as the Muslim ban, why should anyone expect it to stop Trump from separating immigrant children from their families? Or from building an illegal wall along the Mexican border? Or from taking any number of authoritarian actions against his political enemies?
Even if the Supreme Court will eventually say that such actions go too far, such a decision could take years. In the meantime, a president with no regard for the rule of law believes that he is free from adult supervision and that the branch of government intended to keep him in line will instead act as his handmaidens.
Chief Justice Roberts can put a stop to this by ruling against the Trump administration in the census case. If the Chief doesn’t, Trump’s lawyers are smart enough to tell the president what such a decision means.