Someone forgot to tell Trump

[Pete F.]

Why some feel the need to grant Agencies or Trump powers that are not constitutional and that the same people screamed bloody murder about when attempted by Obama is comical at best.

Under the federal Administrative Procedure Act, responsible officials must, at the time a decision is made, offer a nonarbitrary, non-capricious explanation for choosing their strategy for carrying out their statutory authority. This requires at least that the proposed administrative action be a rational way of carrying out the mission Congress has assigned the executive, and that the rationale be clearly explained at the time of an agency decision. In the case of the citizenship question, the Department of Commerce failed to take this step, which is why a 2020 citizenship question is now on hold.

The executive branch now has an obvious logic problem: It must generate a non-pretextual agency explanation to justify an action to which it already committed itself without any such explanation. The Justice Department’s public flailing-about for a new rationale looks like the very definition of “arbitrary and capricious.” But whether or not such a rationale can now be found and belatedly attached to the census question, a presidential order cannot make the job easier.

For one thing, a presidential order cannot expand the secretary’s zone of legal discretion to determine the contents of the census. Just as important, an executive order cannot relieve the commerce secretary of his obligation to proceed based on a nonarbitrary rationale rooted in his statutory mission. “The president wants me to ask this question” would not be an adequate reason. Nothing in the statute empowers presidential whim.

In 1838 the Supreme Court decided:
When Congress “impose[s] upon any executive officer any duty [Congress] may think proper which is not repugnant to any rights secured and protected by the Constitution … in such cases, the duty and responsibility grow out of and are subject to the control of the law, and not to the direction of the President.”

The spectacle of the executive order fits the president’s yearning to appear the ever-muscular leader overleaping bureaucratic niceties on the way to policy triumphs. But law can trump myth. The secretary of commerce can satisfy the “arbitrary and capricious” test only with non-pretextual reasoning to support a citizenship question as a rational strategy for making the census useful. Any order purporting to relieve him of that obligation will simply expose the president’s weakness.

[detbuch]

Originally Posted by Pete F.

Under the federal Administrative Procedure Act, responsible officials must, at the time a decision is made, offer a nonarbitrary, non-capricious explanation for choosing their strategy for carrying out their statutory authority. This requires at least that the proposed administrative action be a rational way of carrying out the mission Congress has assigned the executive, and that the rationale be clearly explained at the time of an agency decision. In the case of the citizenship question, the Department of Commerce failed to take this step, which is why a 2020 citizenship question is now on hold.

This is not true. Secretary Ross did take the step. From a March 27, 2018 Reuters article: A question about citizenship status will be included on the 2020 Census to help enforce the Voting Rights Act, federal officials said on Monday . . . Commerce Secretary Wilbur Ross decided to add the question to the count after a Department of Justice request based on the desire for better enforcement of the voting law, the U.S. Department of Commerce said in a statement.
"Secretary Ross determined that obtaining complete and accurate information to meet this legitimate government purpose outweighed the limited potential adverse impacts," it said.

Regardless of what Ross may have said, or implied before, that does not make his stated rationale arbitrary or capricious. See Justice Thomas dissent.

[Pete F.]

Originally Posted by detbuch

See Justice Thomas dissent.

The minority opinion loses
Posted from my iPhone/Mobile device

[detbuch]

Originally Posted by Pete F.

The minority opinion loses
Posted from my iPhone/Mobile device

The dissent makes valid points. They are put on the record. And they can be used in future arguments, as they have been.

Ross gave an explanation. It was not an unconstitutional reason. It was a valid reason. Roberts admitted as much. But he claimed that it seemed to conflict with previous things Ross had said or did. Why should it have to comport with what he said or implied previously?

[Pete F.]

Originally Posted by detbuch

Why should it have to comport with what he said or implied previously?

Because if you don't follow the rule of law, you lose.

Like when you misrepresent the facts to the Court, or present alternative facts. Or use Giuliani’s truth isn’t truth argument. Or your "client" admits that your premise was false.

[detbuch]

Originally Posted by Pete F.

Because if you don't follow the rule of law, you lose.

Like when you misrepresent the facts to the Court, or present alternative facts. Or use Giuliani’s truth isn’t truth argument. Or your "client" admits that your premise was false.

He stated a legitimate reason for including a valid, constitutional, question. Whether he had not stated this reason previously or not, or whether the DOJ request was later and more important may all "seem" inconsistent is not relevant. What was relevant is the validity and constitutionality of his reason. Roberts did not say the reason was not valid or unconstitutional. Quite the contrary.

[spence]

Originally Posted by detbuch

Roberts did not say the reason was not valid or unconstitutional. Quite the contrary.

"The evidence tells a story that does not match the explanation (Commerce Secretary Wilbur Ross) gave for his decision," Roberts wrote. "The sole stated reason seems to have been contrived."

If the evidence tells a story that does not match the explanation then the reason is invalid. Full stop.