The Supreme Court’s big green light for a lawless second Trump administration

The just-concluded Supreme Court term has left us in fear for our democracy. The Court has decided to protect Donald Trump from accountability for the insurrection by disarmingthe Disqualification Clause of the Fourteenth Amendment, weakeninga key law used to prosecute January 6th defendants, and grantingunprecedented and dangerous criminal immunity to presidents. As Justice Sotomayor wrotein her dissent, "Let the President violate the law, let him exploit the trappings of his office for personal gain, let him use his official power for evil ends. Because if he knew that he may one day face liability for breaking the law, he might not be as bold and fearless as we would like him to be." That is the Court's message.

But this is not just about Trump. The Court has also dealt further blows to good governance by, among other decisions, narrowingthe federal bribery prohibition, holding that a mayor who steered contracts to a dealership, and then asked for money afterwards, did not violate the statute. In light of these decisions, how might the Court further undo the legal restraints on the policy initiatives of a Trump administration 2.0?

Now is a good time to revisit the Trump administration's two narrow 5-4 Supreme Court defeats: the citizenship question (DOC v. New York) and DACA rescission (DHS v. Regents). At the center of these cases are pretextual justifications-stating a purportedly legal reason for a policy, which might not be the actual motivation behind it. Pretextual justifications by government agencies, or reasoning that does not hold up to scrutiny and may be intended to hide the real motivations behind policy changes, lead to significant challenges for transparency and accountability. These justifications prevent both the courts and the public from assessing whether policy decisions are supported by evidence or reflect hidden and improper animus. A government that publicly espouses false justifications for its decision making, in order to conceal more insidious motivations, such as racial prejudice, cannot be a fair and equitable government, and courts play a critical role in preventing such schemes. In these two cases, the Trump administration manufactured facially neutral but ineffective bases for their initiatives, ignored experts' objections and possible alternatives, and arguedin court for Trump's frequent remarks about immigrants to be swept under the rug.

These legal defeats symbolize the constraints the Trump administration faced just a few years ago. Now, the infamous far-right playbook for a second Trump administration, Project 2025, lists both adding the citizenship questionand rescinding DACAas part of their immense manifesto. Were we to find ourselves in the same place again, would the Court-this time with a conservative super-majority stacked with Trump's appointees-permit pretextual justifications to become an accepted mode of governance? If the reasoning of Trump v. United Statesgranting presidents criminal immunity is any indication, the answer might well be yes.

Manufacturing the Citizenship Question

Less than a month after he was confirmed in February 2017, Secretary of Commerce Wilbur Ross askedhis Deputy Chief of Staff, Earl Comstock, why there was no citizenship question on the census. After Ross spoke withpeople like White House advisor Steve Bannon about adding the citizenship question to the census, the ball started rolling-but not to Ross's satisfaction. Ross emailedComstock in May 2017 about the subject. "I am mystified why nothing have [sic] been done in response to my months old request that we include the citizenship question. Why not?" Comstock's reply would in turn define the scheme that materialized over the next few months. "We need to work with Justice to get them to requestthat citizenship be added back as a census question."

Comstock later testifiedin court that he did not "'need to know what'" the Secretary's actual "'rationale might be, because it may or may not be one that is … legally-valid.'" His goal, instead, was to find a "'legal rationale'" to support the Secretary's request to add a citizenship question, and to "'find an agency that would have a reason'" to do so. Ross and Comstock got a nofrom the DOJ and the Department of Homeland Security in September 2017. Ross then spokedirectly to Attorney General Jeff Sessions, who was "'eager to assist.'"

Upon approval of Sessions himself, the DOJ finalized a letter inDecember 2017, and sent it to the Census Bureau, a component of the Department of Commerce (Commerce), asking for the citizenship question to be added to the census to assist them in their mandate to enforce the Voting Rights Act. Prior to that, officials at the Census Bureau had never heardfrom the DOJ that the Citizen Voting-Age Population data was insufficient for enforcing the Voting Rights Act.

In the past, Census Bureau officials have consistently opposed adding a citizenship question because it could compromise the accuracy of the censusby causing non-citizen legal residents to "'misunderstand or mistrust the census and fail or refuse to respond,'" for fear that the information could be used against them. Section 2 of the Fourteenth Amendment, ratified after the Civil War, requires that "the whole number of personsin each State" be counted for apportionment purposes. Another survey instrument by the Census Bureau not used for apportionment purposes, the annual American Community Survey (ACS), does include a citizenship question.

The Census Bureau told Ross as much. Adding the citizenship question would lead to an estimated minimum 154,000 fewer correct enumerations, whereas the Bureau could simply utilize administrative records from other agencies to provide comparable data without reducing correct enumerations. Commerce received oppositionto the question from "former directors of the Census Bureau, business groups, civil rights groups, social science groups, members of Congress and state and local officials." Despite that, in March 2018, Ross proceeded to announcehis proposal. New York, along with other states and a coalition of organizations, challenged the inclusion of a citizenship question in court.

When he testified before various congressional committees, Ross reiterated at least three times, in three different hearings that Commerce was "'responding solely to Department of Justice's request,'" that the "'Department of Justice, as you know, initiated the request for inclusion of the citizenship question'" and that "'the Justice Department is the one who made the request of us.'" Ross repeated the same narrative in the initial court record, but later admittedin a supplemental memorandum, filed on the recommendation of the DOJ, that he and his staff had inquired whether the DOJ "'would support, and if so would request'" adding the citizenship question.

Judicial review can function "accurately and efficaciously only if [an agency] indicates fully and carefully the methods by which, and the purposesfor which, it has chosen to act." The judiciary and the public, under the pretextual justifications used by Commerce, could not evaluate whether the actual rationale of the decision is supported by evidence, or whether Ross's actual rationale involves "impermissible racial and partisan motivations," as Commerce's Office of Inspector General seemed to suspect in their internal investigations, revealed through CREW's ongoing FOIA litigation against the DOJ.

In its decision, the Supreme Court dismissed almost every argument by the challengers, but Chief Justice Roberts ultimately joined Justices Breyer, Ginsburg, Kagan and Sotomayor in finding "a significant mismatch between the decision the Secretary made and the rationale he provided." The majority noted that "the record suggests that DOJ's interest was directed more to helping the Commerce Department than to securing the data." Even so, however, he made sure to clarify that the citizenship question does not violatethe Constitution, and the Secretary has the authority to weigh the risk-benefit trade-offsbetween options.

Project 2025 specifically statedadding a citizenship question as a policy goal, noting that the Supreme Court granted broad authority for the Secretary of Commerce to do so. It seems that they are correct about the Secretary's authority under the majority opinion. But setting aside the substantive authority of the Secretary, pretext concealing animus is itself an issue of good governance. The evidence of pretextual justification here did not move Justices Thomas, Gorsuch, Kavanaugh and Alito at all. Despite the unusually extensive administrative record above, three of them said there is nothing suspicious here with the explanation. Justice Alito concluded separately that courts have no business even questioningthe Secretary's decision, much less the motivations behind it. One must wonder, then, whether the Court would even care about pretextual justifications next time around-if a second Trump administration would even bother to put one up.

The citizenship question saga is, of course, not the only time the Trump administration's reasoning was put under close scrutiny by litigants.

Dismantling DACA

A few months into President Trump's term, Texas Attorney General Ken Paxton and ten other states sent U.S. Attorney General Jeff Sessions a letter threateningto challenge the legality of "Deferred Action for Childhood Arrivals" (DACA), the initiative that offersimmigrants who came to the United States as a child a mechanism to apply for a halt of their deportation-unless the federal government rescinded DACA. This letter came after their earlier successful lawsuitstopping its expansion under the Obama administration. Attorney General Sessions then sent DHS a letter advising that DACA be rescinded, citing the earlier challenge to DACA's expansion and "that potentially imminent litigation would yield similar results with respect to DACA."

The next day, Acting Secretary of Homeland Security Elaine Duke issued a memo rescindingDACA-in its entirety, not just the parts challenged in the earlier lawsuit-citing no policy reasons except the concerns for legality. New applications for DACA benefits would be rejected immediately, and the DACA population would be expected to dwindle down to zero in two years. Regents of the University of California, as well as a number of states, counties and individual DACA recipients, filed suitchallenging the justification for the rescission as legally "arbitrary and capricious" and secretly motivated by President Trump's racial animus against Latinos.

The Supreme Court, with the exception of Justice Sotomayor, quickly shot down the allegations about President Trump's racial animus as irrelevant. Trump's various statementscharacterizing Mexicans-as criminals, rapists and "people that have lots of problems," and undocumented immigrants as "animals" who are responsible for "the drugs, the gangs, the cartels, the crisis of smuggling and trafficking"-were, according to the Court, too remote and attenuated from the DACA rescissionto be evidence of racial animus.

Chief Justice Roberts, again joined by Justice Breyer, Ginsburg, Kagan, and Sotomayor, found that the justifications proffered by Acting Secretary Duke did not hold up to scrutiny. DHS's justifications in court were either irrelevant post-hoc rationalizationsor did not justify or explainrescission of DACA in its entirety. There was no discussion of the alternativeof leaving important parts-the halt of deportation-in place, nor did it discuss the effect of rescission on those who have "enrolled in degree programs, embarked on careers, started businesses, purchased homes, and even married and had children." But perhaps leaving the door open for future DHS action, Chief Justice Roberts' majority opinion suggested that DHS could have passed muster with more explanations.

Justices Thomas, Gorsuch, Kavanaugh and Alito were again unmoved by the alleged flaws of the agency's policy justifications. Three justices believed that DACA is indeed unlawful, and that there's no problemwith the agency's original rationale ignoring alternatives. Justice Kavanaugh wrote separately that the Court should have acceptedthe post-hoc rationales of the agency.

If DACA survives a currently pending lawsuitspearheaded by Texas, Project 2025 has made eliminating such so-called "unlawful programs" part of its manifesto, and there might not be a majority of justices on this Court who will let ineffective justifications or improper motives of the President stand in the way. The Court has already shown its reticencein allowing judges and juries to inquire into the President's motive when deciding his immunity.

The citizenship question and DACA cases-involving policy justifications that range from those that do not hold up to scrutiny to ones that are deliberately manufactured-are at their core about good governance. They are harrowing reminders of what norms and limits of an accountable government were barely able to stay in place just a few years ago, but might no longer bind a reprise of the Trump administration.Next time around, a second Trump administration could well be emboldened in their belief that neither Trump's racial commentaries, nor fabricated or ineffective justifications by agencies, can form legal obstacles to their initiatives-whether it's revoking approval for mifepristoneor eliminating visas for victims of human trafficking.

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