(07-11-2019 11:35 AM)Frizzy Owl Wrote: (07-11-2019 11:27 AM)georgewebb Wrote: - To what extent Congress could allow the Executive to do that on its own is another question. For many years, the general judicial view seemed to be that the regulatory discretion of the Executive has few limits, but that pendulum may be starting to swing the other way.
That will depend on how much discretion and authority Congress has delegated to the Executive in legislation to date on matters pertaining to the Census. I don't know the answer to that myself.
Well, the Census Act (13 USC 1 et seq.), like a thousand other statutes, purports to give carte blanche to the executive ("the Secretary may prescribe regulations to carry out this Act" or some such) and that used to be the end of it, but not so much anymore. It wasn't the Census Act the Trump administration was found to have violated, but the Administrative Procedure Act. And the APA's prohibition against only "arbitrary and capricious" executive action used to be a low bar to clear too, as one might think it would be.
But now, apparently, we find that lurking all along in the APA has been this unstated requirement that even when the action is not arbitrary or capricious (the executive competently explains how it decided on X to accomplish Y), the
motive that the executive gives (why it wants to accomplish Y in the first place) -- even if true, rational, and not arbitrary or capricious -- must be the
whole motive, and there can't be any unstated motives, like (heaven forbid!) potential political considerations.
(07-11-2019 02:07 PM)tanqtonic Wrote: Edited to add: I also somewhat look forward to the interaction that will invariably have to occur between Barr and the ensconced progressives on this.
I am kind of hoping that they underestimate him some more. I have a feeling one underestimates Barr at their own peril, and I dont think Barr will be headed down this path without some basis. I might be mistaken though about Barr, but nothing I have seen to date indicates such a mistake.
From a legal issue viewpoint, I think it will be very interesting to see (to say the least) how the end run can be framed as a legal argument.
As we now see, Trump/Barr won't be making an end run or defying the Supreme Court or causing a constitutional crisis or blah blah blah. The executive order is to collect citizenship data, just not through the census, pretty much as we do now. I certainly have my criticisms of Trump, but for all the liberal hyperventilating about how we're on the precipice of a dictatorship, has Trump ever done anything like (as you pointed out in another post) DACA/DAPA, which were not just gross subversions of the rule of law but conceded as such by Obama mere months before he instituted them?
It would have been nice to have this new 2019 "pretext" standard back in 2014 to challenge DACA, I must say.
(07-11-2019 02:40 PM)tanqtonic Wrote: One thing came to me last night after re-reading the census question SCOTUS opinion: Roberts and all four of the liberal justices all came to an agreement that administrative decisions are *not* to be treated with any level of deference -- nowhere near the deference that should be part and parcel of the body of law that has evolved around the administrative state.
Think on this. Typically the four liberal stalwarts fight tooth and nail to keep items like Chevron deference as part and parcel of judicial review. Here, they steered opposite of that, to the complete other side mind you.
Roberts may have just placed a big nail via a serious ju jitsu move into the administrative state power doctrines with this decision.
Added to that is that in a previous case this term, the court radically narrowed the Auer doctrine—where the judiciary *had* to accept an agency’s interpretation of its own regulations.
And with another that addressed the non-delegation doctrine. There, in a concurrence that actually upheld such a law, Alito added as his fifth vote: “If a majority of this Court were willing to reconsider the approach we have taken [to nondelegation] for the past 84 years, I would support that effort.”
That makes five votes to begin restoring the Constitution’s separation of powers and prevent Congress from handing off hard decisions—and the authority to make them—to the agencies.
The decision in the census question case and the other two cases this term may actually be strike against the administrative state, and in the census case the liberal justices are the ones providing the foundation.
Regulation issuance should grind to a halt, now that injunctions can issue essentially automatically so that discovery can be taken into the motives of every person who had input into the decisionmaking.
