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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.
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