A frivolous lawsuit against Trump’s census question

It may be that the citizenship question simply encourages people to lie. But it cannot be reasonably claimed to violate anyone’s constitutional powers or rights. If you don’t like it, pass a law. If you can’t pass a law, too bad.

There is much fretting on the Left that the resurrected question might affect congressional representation, but this is an absurd notion and would never hold up in any court. The Constitution makes it clear that the decennial census must count everyone. A good textualist judge would tell you that we know this because that’s how it’s always been understood. At the time of the founding, the census counted many classes of people who couldn’t vote, such as children, women, and slaves. The Three-Fifths Compromise was created specifically to prevent slave states from taking even greater advantage of slavery to enhance their numbers in the House of Representatives.

So the precedent is solidly established that House seats have to be apportioned based on total population, not voter-eligible population. No one can reasonably read the Constitution and conclude otherwise.

But that doesn’t mean the census can’t ask other questions, too. The citizenship question was asked by the census before 1960, so what is the basis today for a court to rule that it violates the Actual Enumeration Clause, as California Attorney General Xavier Becerra is arguing?

The census asks all kinds of other questions (about race, for example) that have nothing to do with enumeration of the population. The long form of the census asks even more intrusive questions. This has been accepted practice since the nation’s founding. So as long as an “actual enumeration” is also taken and used to apportion House seats, the citizenship question doesn’t appear to pose any constitutional problems.

Unfortunately, we seem to be facing the same problem as when President Trump imposed travel restrictions from certain countries rife with terrorists. Certain judges took the opportunity to block the measure, apparently because it originated with Trump, whose public comments on immigration were deemed to diminish the authority of his office.

The Supreme Court has temporarily set aside these rulings for a simple reason the president has plenary authority to exclude foreigners. Any judge who says otherwise is making up the law as he goes.

Trump came to power talking tough about enhancing his own power and weakening others’ constitutional protections. So it makes sense to be vigilant and hold him to the law. But a certain strain of liberal jurist seems willing to destroy the law itself in order to limit Trump’s powers more than other presidents’, just because he’s Trump.

For example, a judge refused to let former President Barack Obama’s DACA directive expire on schedule. Not only was DACA temporary, created by Obama with an expiration date, but it is a mere executive action and not even a law. All merits of the policy aside, any action like DACA can, in theory, be abolished at any time by a stroke of any sitting president’s pen. Otherwise, America is a monarchy more absolute than most of the ancient regimes. Just imagine: A president’s word becomes irrevocable law, even after his reign? Any judge who accepts that poses a much greater threat to the rule of law than Trump ever could.

If courts decide matters such as immigration policy and census questions based on the biased idea that some presidents are more equal than others, they will be abandoning the rule of law and creating their own constitutional crisis.

It is to be hoped that the Supreme Court will put an end to this brand of jurisprudence when it takes up the travel ban case. Checks and balances are no good unless they occur within the clear framework of the law. Rules have to be the same for everyone. They don’t depend on who is president and whether a particular judge likes him.