Trump needs a new commerce secretary

Secretary Wilbur Ross of the Commerce Department is to blame for the absence of the citizenship query on the 2020 Census. 

President Trump can assemble all the parallel data available within the nooks and crannies of the federal government, but the redistricting process (and financial distributions) can be anticipated to include (and to reward) the invaders.

Such rationalizations aside, Ross relied upon the one argument — allegedly to uphold the thrust of the Voting Rights Act of 1965—that the Supreme Court had explicitly voided on June 25, 2013 (Shelby County v. Holder).

The Court had determined that the coverage formula violated the constitutional principles of "equal sovereignty of the states" and federalism, because its disparate treatment of the states is "based on 40-year-old facts having no logical relationship to the present day." (Technically, the Court did not strike down Section 5, but without Section 4[b], no jurisdiction may be subject to Section 5 preclearance unless Congress were to enact a new coverage formula.)

Thus, recognizing conservative concerns with the separation of powers, the Court did not intrude inappropriately when critiquing the administrative rationale for this policy, for it justifiably discounted the foundation of the one argument raised by Ross that it had previously nixed.

Furthermore, the administration could have multitasked by having instituted the myriad internal cross-checking mechanisms that will now be invoked while honoring the federal court remand expeditiously.

Specifically, the Commerce Department could have both honored Trump's executive order to pool databases and proposed additional legal arguments in favor of reinstituting the citizenship query.

Indeed, an expedited assessment by the Court could have been sought over the summer, inasmuch as Trump had proposed that an addendum form could have been printed in the fall without missing presumptive publication deadlines.

Granted, both district judges who denied the customarily routine Justice Department's request to swap representation are Obama-appointees, but intent to provide fresh rationales for this question could satisfy their request for a reason for this to be approved.  Alternatively, the intent for new lawyers to enter appearances could be obviated by supplying the already functional attorneys with the new arguments.

The possibility that internal memos reveal a "smoking gun" political motive for this initiative is irrelevant, particularly in light of the fact that the Court has consistently deferred adjudication of political questions to the voters.  This posture was just exemplified when it refused to wade into the North Carolina redistricting case and when, last year, it refused to overturn the congressional district maps in Pennsylvania that had been drawn by its Supreme Court despite black-letter constitutional language that this was solely a legislative responsibility.

The first congressional statute implementing the Constitution's Enumeration Clause (Article 1, Section 2) passed in 1790, inter alia omitting "Indians not taxed."  The current controlling law (13 U.S. Code §4) empowers the secretary of commerce to discharge this duty.

Thus, simply by invoking precedent, Trump can submit a slimmed down and focused request that the SCOTUS revisit this issue.  In the meantime, he should replace the proven incompetent Secretary Ross — an action that would not require judicial approval.

Image: Gage Skidmore via Flickr.

Secretary Wilbur Ross of the Commerce Department is to blame for the absence of the citizenship query on the 2020 Census. 

President Trump can assemble all the parallel data available within the nooks and crannies of the federal government, but the redistricting process (and financial distributions) can be anticipated to include (and to reward) the invaders.

Such rationalizations aside, Ross relied upon the one argument — allegedly to uphold the thrust of the Voting Rights Act of 1965—that the Supreme Court had explicitly voided on June 25, 2013 (Shelby County v. Holder).

The Court had determined that the coverage formula violated the constitutional principles of "equal sovereignty of the states" and federalism, because its disparate treatment of the states is "based on 40-year-old facts having no logical relationship to the present day." (Technically, the Court did not strike down Section 5, but without Section 4[b], no jurisdiction may be subject to Section 5 preclearance unless Congress were to enact a new coverage formula.)

Thus, recognizing conservative concerns with the separation of powers, the Court did not intrude inappropriately when critiquing the administrative rationale for this policy, for it justifiably discounted the foundation of the one argument raised by Ross that it had previously nixed.

Furthermore, the administration could have multitasked by having instituted the myriad internal cross-checking mechanisms that will now be invoked while honoring the federal court remand expeditiously.

Specifically, the Commerce Department could have both honored Trump's executive order to pool databases and proposed additional legal arguments in favor of reinstituting the citizenship query.

Indeed, an expedited assessment by the Court could have been sought over the summer, inasmuch as Trump had proposed that an addendum form could have been printed in the fall without missing presumptive publication deadlines.

Granted, both district judges who denied the customarily routine Justice Department's request to swap representation are Obama-appointees, but intent to provide fresh rationales for this question could satisfy their request for a reason for this to be approved.  Alternatively, the intent for new lawyers to enter appearances could be obviated by supplying the already functional attorneys with the new arguments.

The possibility that internal memos reveal a "smoking gun" political motive for this initiative is irrelevant, particularly in light of the fact that the Court has consistently deferred adjudication of political questions to the voters.  This posture was just exemplified when it refused to wade into the North Carolina redistricting case and when, last year, it refused to overturn the congressional district maps in Pennsylvania that had been drawn by its Supreme Court despite black-letter constitutional language that this was solely a legislative responsibility.

The first congressional statute implementing the Constitution's Enumeration Clause (Article 1, Section 2) passed in 1790, inter alia omitting "Indians not taxed."  The current controlling law (13 U.S. Code §4) empowers the secretary of commerce to discharge this duty.

Thus, simply by invoking precedent, Trump can submit a slimmed down and focused request that the SCOTUS revisit this issue.  In the meantime, he should replace the proven incompetent Secretary Ross — an action that would not require judicial approval.

Image: Gage Skidmore via Flickr.