People have been talking about the supreme Court opinion in the case about the citizenship question on the census, but almost nobody noticed the judicial tyranny the court displayed.

For those of you who have not been following the case, the State of New York sued the U.S. Department of Commerce for returning the question about citizenship to the census questionnaire. While I could go into a long sidebar discussion about the purpose and abuses of the decennial enumeration of the population of the United States of America, it is the abuse of power the judicial branch, and especially the supreme Court, committed against the American people I want to focus on in this article.

After a brief description of why we have a census and a somewhat longer recitation of the process by which the case came to the supreme Court, Chief Justice Roberts in writing the opinion of the court held:

2. The Enumeration Clause permits Congress, and by extension the Secretary, to inquire about citizenship on the census questionnaire.

…

4. The Secretary’s decision was supported by the evidence before him.

Dept. of Commerce v. New York

I don’t know about you, but that seems pretty open and shut to me. The citizenship question is permitted under the enumeration clause of the Constitution and the secretary’s decision was supported by the evidence before him. Slam dunk, case closed. But not to this court.

It is hardly improper for an agency head to come into office with policy preferences and ideas, discuss them with affected parties, sound out other agencies for support, and work with staff attorneys to substantiate the legal basis for a preferred policy. Yet viewing the evidence as a whole, this Court shares the District Court’s conviction that the decision to reinstate a citizenship question cannot adequately be explained in terms of DOJ’s request for improved citizenship data to better enforce the VRA.

Dept. of Commerce v. New York

So let me get this straight: The court agrees that the census can legally include a question about citizenship and that the Secretary’s decision was supported by evidence, but the court doesn’t like the reason the DOJ requested the addition of the question? Right after stating that it is quite proper for an agency head to come into office with policy preferences, they complain that the Secretary started implementing a policy preference within a week after taking office. Could the problem be they don’t like this secretary’s policy preferences? Or is it the fact that he tried to legally implement them? If what the Secretary did was legal though, does the court think the reasoning given in the case was contrived?

What’s the Big Deal?

Some of you may be asking yourselves, “What’s the big deal?” The big deal is that it’s a question of separation of powers. Of the 27 grievances our Founding Fathers published in the Declaration of Independence as reason they were separating from Great Britain, ten of them had to do with the passing and executing of laws. Whether it was the king’s refusal to approve laws that the colonies needed, forbidding governors to execute laws, or the dissolution of representative legislatures who opposed his will, over one third of the reasons we’re no longer British were directly related to the illegal control over the passing and execution of laws created by those who represented the colonies. That is why, when they created the Constitution, they separated the powers of legislating, executing, and judging cases into three separate branches. Yet what do we see here? The court acknowledges that Congress passed a law that they were legally empowered to do by the Constitution (an opinion which is questionable). They also stated that the head of an executive agency not only followed proper procedure, but supported his decision with evidence. They even acknowledge that there is nothing wrong with said agency head coming into office with policy preferences. They go so far as to say “The Enumeration Clause of the Constitution does not provide a basis to set aside the Secretary’s decision.” Because they do not like the explanation provided by that agency, however, they are going to not only overrule both the legislative and executive branches of government, but the Constitution itself.

In fact, the federal court system is acting more and more like King George III. Just look at how many grievances from the Declaration can now be directly attributed to the federal courts:

[They have] refused [their] Assent to Laws, the most wholesome and necessary for the public good.

[They have] forbidden … Governors to pass Laws of immediate and pressing importance, unless suspended in their operation till [their] Assent should be obtained;….

[They have] endeavoured to prevent the population of these States; for that purpose obstructing the Laws for Naturalization of Foreigners; refusing to pass others to encourage their [legal] migrations hither, and raising the conditions of new Appropriations of Lands.

[They have] combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation. (i.e. the United Nations and foreign constiutions).

For imposing Taxes on us without our Consent. (Affordable Care Act)

For depriving us in many cases, of the benefits of Trial by Jury. (Administrative law courts.)

For taking away our [Constitutions], abolishing our most valuable Laws, and altering fundamentally the Forms of our Governments. (Overturning state laws made in pursuance of state constitutions regarding powers not delegated to the federal government.)

For [making ineffective] our own Legislatures, and declaring themselves invested with power to legislate for us in all cases whatsoever.

Paraphrase of the Declaration of Independence

And how did this happen? It happened because the American people have been derelict in their duty to oversee their elected representatives.

Where does that leave us?

Like a magician on stage, all the attention is being drawn to one hand while the real trick is being done in the other. It’s about time the American people woke up from their slumber and started holding their elected representatives accountable. After all, since Washington does its work in our name, shouldn’t we hold them responsible for their oath of office to support the Constitution?

The court does not have the authority to change law or implement policy. This was confirmed in the famous case Marbury v. Madison. The supreme Court agrees that Congress is well within its authority to have the commerce department conduct the census. The court also agrees that the secretary followed the law and that his decision is not reviewable under the Administrative Procedures Act (APA). In short, the supreme Court, in their own opinion, say they have no authority to remand the case or invalidate the agency’s action. If the court is allowed to ignore the Constitution and the separation of powers it created, if a group of five justices can ignore the powers delegated to them and assume the power to legislate and execute from the bench, then they have become the tyrannical oligarchy so many have warned us about. If that is the case, we must respond both wisely and properly.

Congress should pass a resolution condemning the blatant overreach of the court. In fact, articles of impeachment should be filed listing the bad behavior of those who wish to usurp the powers of the other branches by signing on to this opinion. The President should use the court’s own words to oppose their opinion. The court said the action of the secretary is not reviewable under the APA, so their decision that he needs to explain his action under it is contradictory. The court also said Congress was within its authority to place the census under the Department of Commerce and that its Secretary followed the laws and regulations in putting the citizenship question on the census. He should therefore, supported by the written opinion of the court, proceed with inclusion of the citizenship question and ignore the remanding for review of their explanation.

Some may say this is going too far and that to ignore the court is lawlessness and anarchy. But checks and balances require not only that the parties be separate, but that they be able to check the actions of the other. If no one can check the actions of such a blatant usurpation of power, then this experiment in self-rule has truly failed. As Alexander Hamilton said:

The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.

Alexander Hamilton, Federalist No. 78

Since the judiciary is dependent on the executive to enact its judgments, it is time that branch told the court, “thank you for your opinion, but NO”. If not, then we should stop calling ourselves a Constitutional republic and refer to ourselves as the banana republic we’ve become.