How Many Divisions Does Chief Justice Roberts Have?

When Obama didn’t like a court order, he ignored it.

In fact , he exceeded the constitutional bounds of his office at least 10 times, notes Ilya Shapiro. He did it in intervening in Libya without even notifying Congress; in subverting creditors’ rights in the Chrysler bailout; in his administration’s implementation of ObamaCare; In the political profiling by the IRS; in illegally appointing three members of the NLRB and the head of the Consumer Financial Protection Board when Congress was not in recess; in directing “the Department of Homeland Security to issue work and residence permits” to the so-called Dreamers (Deferred Action to Childhood Arrivals); in assaulting free speech and due process on college campuses; in creating and implementing his clean power plan; in his overly expansive clean water plan to cover water which is  not navigable; in adopting a net neutrality rule; in implementing a cap-and-trade rule.

After the 2014 midterms, the president decided that he had been wrong 22 times in saying he couldn’t give temporary legal status to illegal immigrants. The administration engineered this Deferred Action for Parents of Americans in the wake of Congress’ rejection of the same policies, in violation of the Administrative Procedure Act, immigration law, and the Constitution’s Take Care Clause.

By contrast, although hampered at every turn by Obama-appointed district court judges assuming themselves to be commanders-in-chief and issuing nationwide injunctions against presidential actions on spurious grounds, this administration has continued to follow the accepted path of appealing those rulings, despite the delays that entails. Against the State: An ... Llewellyn H. Rockwell Jr. Best Price: $2.11 Buy New $8.56 (as of 03:10 EST - Details)

Oddly, Chief Justice Roberts took issue with the notion that these usurpers are Obama judges, claiming the federal judiciary is politically neutral. I say oddly, because twice Roberts has not been politically neutral — once in affirming the constitutionality of ObamaCare’s mandatory insurance on grounds not argued by the government and now in deciding that including a question about citizenship while constitutionally permissible and done according to the relevant statutes might have been done for an undeclared motive, partisan advantage. By waiting until the last day of the term to announce his decision, he in effect gave himself a pocket veto. This is so because the time for printing the forms was so close and the census due to begin in October, shortly after the court returns for a new term. Though the case was remanded to take evidence about the purpose of the question it is likely the conclusion of that exercise below which would certainly return to his court could not be resolved in time by the Roberts’ court.

While the government at first seemed to concede defeat, it’s not at all certain that is the case.

Exactly how this will proceed remains up in the air, but in the Wall Street Journal, two distinguished lawyers, David B. Rivkin Jr. and Gilson B. Gray,  have offered the president a solution.

Section 2 of the 14th Amendment provides that if a state denies the franchise to anyone eligible to vote, its allotment of House seats shall be “reduced in the proportion which the number of such… citizens shall bear to the whole number of… citizens… in such state.” This language is absolute and mandatory. Compliance is impossible without counting how many citizens live in each state. [snip] The president should issue an executive order stating that, to comply with the requirements of Section 2 of the 14th Amendment, the citizenship question will be added to the 2020 census. In addition, he can order the Commerce Department to undertake, on an emergency basis, a new Census Act rulemaking.

That would trigger another round of litigation. Opponents would choose a federal district court likely to block it again, and the Justice Department would have to seek the Supreme Court’s intervention during its summer recess. While rare, such an emergency review has happened before. With the justification for the citizenship question being clear and compelling, the administration should prevail.

The census has in recent years taken on more than a tinge of partisanship. Soon after taking office, President Obama required the director of the Census to report directly to the White House, rather than as is customary to the Commerce Secretary.

Read the Whole Article