Tuesday, July 2, 2019

Lincoln’s legacy: NOTHING can stop President Trump from asking citizenship question on 2020 census

Andrew Harrer/Bloomberg via Getty Images
Judges do not have the power to veto abstract political policies or laws; they merely render judgment to individuals with proper standing before the courts where individualized rights were implicated. That is why they have as much power to dictate the drafting of U.S. Census questions as I do or as the president of Afghanistan does. Thursday’s decision presents President Trump with the perfect opportunity to “remind” the courts of their “impotence,” as Justice Antonin Scalia predicted would happen before he died.
I’m often asked if the president should pull ‘an Andrew Jackson’ on the courts and put them in their place. My response is that it is the courts who are pulling an Andrew Jackson, except, unlike a president, they lack the power to enforce their usurpations.
Drafting a census, much like giving out visas and work permits to illegal aliens or controlling the border, is an executive function. Unlike convicting individuals charged with crimes who face the loss of life and liberty, which is eminently within the province of judicial power, courts don’t have power over abstract political questions dealing with broad executive powers affecting the whole of the people. As such, when a president applies these policies in concert with the Constitution and the law, he is not “defying a court” the same way he would if, say, he directed the Justice Department to incarcerate or execute John Doe for a crime after a court vacated his conviction.
The census ruling is the superlative opportunity for Trump to begin reclaiming inherent executive authority from rogue court opinions designed to create broad political rules outside of their jurisdiction. This case has all of the key elements for doing so: the Constitution, statute, history and tradition, are all on his side and there is no tangible, individualized harm to specific plaintiff that would result from Trump continuing to ask the citizenship question on the census. Moreover, Trump is merely overturning a policy from the previous administrations and reverting back to our long-standing history. No new ground is broken.
Once the president does it this time, he will then have an easy avenue to do so every time a district judge mandates he continue a discretionary policy of his predecessor.
To begin with, each branch of government has the responsibility to use its powers in accordance with their oath to the Constitution, irrespective of what other branches are doing. That is literally what is meant by separation of powers. The same way a judge can grant relief to an individual plaintiff when he believes the Constitution compels such a result, irrespective of the laws of Congress or the policies of the executive branch, the president must also execute policies in concert with the law, irrespective of what a court rules for an individual plaintiff.
Read the rest from Daniel Horowitz HERE.

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