Under Record Spending, The Deficit Is Great Again

A popular meme from a few years ago was based around Heath Ledger’s portrayal of the Joker in the 2008 film, The Dark Knight. In the movie, the Joker contrasts the different reaction to threatening different people.  

“If, tomorrow, I tell the press that, like, a gang banger will get shot, or a truckload of soldiers will be blown up, nobody panics, because it's all 'part of the plan,'” Ledger’s Joker opined, “But when I say that one little old mayor will die, well then everyone loses their minds!”

These days the deficit is a lot like that.

Currently, it’s easy to imagine (as I memed on my Facebook page) the Joker saying, “A Democrat runs a trillion dollar deficit and everyone loses their minds; a Republican does it and no one cares.”

The Treasury Department announced yesterday that the federal budget deficit for the fiscal year to date was 23 percent higher than for the same period last year. The deficit for the current fiscal year, which began last October, stands at $747.1 billion and is forecast to top $1 trillion by the end of the fiscal year.

As some Republicans have noted, the 2017 tax reform bill was followed by record-high federal revenues, but this was not enough to prevent the massive deficit for two reasons. The first reason is that federal spending also reached a record high, $3.36 trillion for the period. Per the Office of Management and Budget, federal spending has increased dramatically under President Trump. In 2016, federal outlays were $3.852 trillion and this year the government is expected to spend $4.529 trillion.

Increased spending is only half the equation, however. While federal revenues are at a record high, they have grown at a slower rate than federal spending. This is due in large part to tax reform. While tax receipts did increase after tax reform, they fell far below the Congressional Budget Office projection. The OMB tables show flat revenues between 2017 and 2018 when tax reform took effect, followed by a modest increase projected for 2019.

In 2017, I saw corporate tax reform as necessary to keep American companies competitive in a world economy where the US corporate tax rate was among the highest in the world. However, President Trump’s decision to launch numerous tariff wars in the wake of tax reform has almost totally offset the benefit of the lower income tax rates, resulting in sluggish growth and flatter tax revenues. In any case, the dramatic increases in federal spending, including billions to aid farmers hurt by the unnecessary and ill-advised trade wars, was the wrong policy prescription after a tax cut.

Under President Obama, Republicans took a hard line on the deficit and the federal debt limit. Speaker John Boehner, much maligned by conservatives, used the sequester to cut federal spending in real dollars, not merely reducing the amount of increases. Increases to the debt ceiling were paired with cuts to spending. The OMB data shows that federal outlays declined in 2012 and 2013. One must look back to the Eisenhower Administration to find similar spending cuts in consecutive years.

Now, as the government approaches the debt ceiling yet again, there is no sign of fiscal restraint from the Trump Administration. Mr. Trump’s proposed budget for 2020 is the largest ever at $4.75 trillion. In March, Treasury Secretary Steven Mnuchin asked Congress to pass a clean bill, one with no spending constraints, to increase the debt ceiling. Earlier this week, White House Economic Advisor Larry Kudlow said of the $22.5 trillion national debt, “I don't see this as a huge problem at all right now.”

But the debt and the deficit do represent a huge problem, even if the Trump Administration and Republicans now fail to recognize them as such. When the deficit tops $1 trillion this year, it will be in the midst of peacetime and a strong economy. The last time that the deficit exceeded $1 trillion it was in 2012, in the wake of President Obama’s stimulus spending after the Great Recession. With President Trump’s massive deficits in good times, there is absolutely no realistic plan to reduce the deficit at any point in the near future, especially if the economy sours.

While the debt limit must ultimately be increased to avoid the financial chaos of a default, it should be paired with spending cuts under the successful Boehner strategy. However, Speaker Nancy Pelosi is pushing in the opposite direction. Fortune reported that House Democrats were advocated for a vote that would pair the increase to the debt limit with a spending bill that would increase the deficit by as much as $300 billion.

Even the House Freedom Caucus has been silent about the looming increase to the debt limit. The group has instead focused on rebuking Rep. Justin Amash for his stance on impeachment. A search for recent comments about federal overspending and borrowing from caucus members yielded nothing.

It seems that if there are any fiscal hawks left in Washington that they are in full retreat.

Originally published on The Resurgent

Biden's New Feisty Campaign

Joe Biden’s campaign is undergoing a shift in strategy. Following the candidate’s lackluster performance in the first round of Democratic primary debates, supporters are calling on the former vice president to take a more aggressive stance with the other candidates. Rather than staying above the fray, Biden and his surrogates are about to come out swinging.

At first, Biden could afford to avoid getting his hands dirty. After his announcement in April, his share of the Democratic voters rose above 40 percent in the Real Clear Politics average. But after a heated exchange with Kamala Harris in the June debate, Biden plunged to the mid-20s. At this point, he is still the frontrunner but momentum is not on his side.

“There are people that are all over Joe to get more aggressive,” a Democratic source told Politico. “People are very nervous.  If he doesn’t come out strong and swinging, you’re going to see a lot of people leaving him.”

Under the new strategy, Biden is more directly referencing his record as Barack Obama’s vice president, often referring to the former president as “Barack,” and his surrogates are making more direct attacks on Harris. Biden, who rarely does interviews, even sat down with CNN.

In a reversal, Biden also apologized to a cheering black crowd in South Carolina for citing segregationists Herman Talmadge of Georgia and James Eastland of Mississippi as people that he worked with in Congress. Noting that Congress was “was full of segregationists” at the time and that he felt he was right to work with “those who we find repugnant to make our system of government work for all of us,” Biden nevertheless said that he was “wrong a few weeks ago, to somehow give the impression to people that I was praising those men who I successfully opposed time and again” and that he was “sorry for any of the pain or misconception that I caused anybody.”

“Until the debate, nobody had attempted to land a critical punch,” said former state Democratic Party chair Dick Harpootlian, a Biden surrogate. “They’re responding to deal with issues that arise from someone attacking the vice president’s record.”

Now Biden is trying to defend his record as well as establish himself as the presumptive challenger to Donald Trump. In addition to defending his record on civil rights and health care, Biden will also deliver a speech on Thursday in New York that will lay out his foreign policy goals and critique President Trump’s performance on international relations. The Biden campaign seems to realize, however, that it must go through Harris to face Trump.

“Coming out of the debates, something the campaign felt strongly about is, we needed to be assertive on what his record was, both in terms of moving forward but to also demonstrate to the political world at large that we weren’t going to take that sort of thing without a response,” a senior Biden adviser said in Politico. “We went out and tried to, best we can — especially with a slick and slippery person — try to pin Kamala Harris down on her own record.”

For now, Joe Biden remains at the top of the heap despite numerous predictions of his impending failure. In a race where the other top candidates are far-left radicals such as Bernie Sanders, Kamala Harris, and Elizabeth Warren, Biden benefits from being the only major candidate in the moderate lane while the other top-tier candidates split the progressive vote.

Nevertheless, if he wants to be president, Joe Biden has to stop the bleeding of his support t. To do that, he has to show voters that he is quick on his feet and strong enough to fend off both Kamala Harris and Donald Trump. The next debate will be a make-or-break moment for Joe Biden.

Originally published on the Resurgent

Trump Shelves Citizenship Census Question

After an unfriendly Supreme Court ruling last week, the Trump Administration has dropped its controversial attempt to add a citizenship question to the 2020 census. A spokesman for the Trump Administration said on Tuesday that they would not appeal the Supreme Court’s decision. President Trump had said as recently as Monday that he would consider delaying the census to appeal the ruling.

“We can confirm that the decision has been made to print the 2020 decennial census questionnaire without a citizenship question and that the printer has been instructed to begin the printing process,” Justice Department attorney Kate Bailey wrote in an email to groups opposing the census question.

In a statement, Commerce Secretary Wilbur Ross also confirmed, “The Census Bureau has started the process of printing the decennial questionnaires without the question,” also stating, “I respect the Supreme Court but strongly disagree with its ruling regarding my decision to reinstate a citizenship question on the 2020 Census.”

In fact, even though the immigration status of people living within US borders is clearly within the legitimate interests of the federal government, the Supreme Court ruling written by Chief Justice John Roberts seems to have been the correct decision. The question for conservatives and constitutionalists is how Roberts got from his observation that the “Enumeration Clause permits Congress, and by extension the Secretary, to inquire about citizenship on the census questionnaire” to his ultimate decision that the Trump Administration violated the law adding the question.

While many pundits are quick to point out that citizenship questions have been asked on the census before, few look to Roberts’ written decision for an answer to the seemingly contradictory statements in the decision. In his justification, the chief justice cited the Administrative Procedures Act, a 1946 law that requires courts to strike down government actions that are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”

“The Census Act confers broad authority on the Secretary, but it does not leave his discretion unbounded,” Roberts wrote.

“The Secretary’s decision was supported by the evidence before Him,” Roberts continued. “He examined the Bureau’s analysis of various ways to collect improved citizenship data and explained why he thought the best course was to both reinstate a citizenship question and use citizen-ship data from administrative records to fill in the gaps. He then weighed the value of obtaining more complete and accurate citizenship data against the uncertain risk that reinstating a citizenship question would result in a materially lower response rate, and explained why he thought the benefits of his approach outweighed the risk. That decision was reasonable and reasonably explained, particularly in light of the long history of the citizenship question on the census.”

However, Roberts continued, “In order to permit meaningful judicial review, an agency must ‘disclose the basis’ of its action.” This is where Secretary Ross and the Trump Administration ran into problems.

“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 [Voting Rights Act],” Roberts stated.

Roberts goes on to describe how enforcement of the VRA seemed secondary to other considerations, despite the government’s claims to the contrary. Ross tried to involve the Justice Department in the census question, but “DOJ’s actions suggest that it was more interested in helping the Commerce Department than in securing the data.”

“Altogether, the evidence tells a story that does not match the Secretary’s explanation for his decision,” Roberts said. “Unlike a typical case in which an agency may have both stated and unstated reasons for a decision, here the VRA enforcement rationale—the sole stated reason—seems to have been contrived.”

In other words, the addition of the citizenship question was not illegal except for the fact that Secretary Ross lied about the reason for wanting to ask the question. Since the Administrative Procedures Act charges the courts to “ensure that agencies offer genuine justifications for important decisions, reasons that can be scrutinized by courts and the interested public,” the Supreme Court had a duty to strike down the question when it became apparent that Ross’s justification for asking it was dishonest.

The citizenship question was not struck down because an activist Court wanted to prevent data from being collected about the number of illegal immigrants in the United States (although it is certainly possible that this was the motive of the liberal wing of the Court). The government lost its case because of the reflexive dishonesty of members of the Trump Administration. Given the latitude with which the government is given in conducting the census and the history of census questions about citizenship, there seems to have been no reason for Ross to have lied about the rationale for the question, yet lie he did.

For conservatives and those who wish to abide by the rule of law, the position should be that the government must adhere to the law, even when the law restricts policies that we would favor. If the Court had ignored the Administrative Procedures Act’s requirements for an honest bureaucracy, that would have been an example of judicial activism. To be intellectually and morally consistent, we have to abide by laws that we don’t like as well as those that we do (such as those against illegal immigration).

The ruling also underscores the importance of voting for honest and competent candidates, not just those who say what we want to hear. The addition of the citizenship question could have been accomplished by the administrations of any number of Republicans. Immigration concerns are not unique to the administration of Donald Trump. However, it seems likely that the culture of dishonesty that permeates the Trump Administration from the top down is what ultimately killed the attempt to learn more about noncitizens living within the United States.  

Character matters.

Originally published on The Resurgent

Trump Tariffs Are Making Canada Great Again

My family and I took a vacation to visit friends in the Canadian province of New Brunswick recently. New Brunswick, which is located to the northeast of Maine, is a long drive from Georgia so we took the opportunity to explore the area while we there. While we shopped at a lobster and seafood shop in the seaside village of Alma, I had an interesting conversation with the proprietor.

As we browsed, the owner asked me what I thought of Donald Trump. As I usually do, I replied noncommittally that I wasn’t a huge fan of the president.

“Well, he’s been good for us,” the Canadian shop owner replied.

He went on to explain how President Trump’s trade war had helped Canadian lobstermen. Like many farmers and fishermen, the lobstermen of Maine exported much of their catch to other countries, including China.

At least they did before the trade war. Seafood Source reported that 2018 had started as a bumper year for Maine lobster, but the implementation of tariffs quickly changed that. After China raised retaliatory tariffs on American imports, lobster shipments declined by 84 percent.

Canadian lobster exporters, unaffected by the US-China trade war, have picked up the slack. The shop owner explained that many importers who had previously bought US lobster were turning to Canada. The Canadian fishermen were benefitting both from increased volume demand for their product as well as higher prices.

While we were in Canada, the going rate for local lobster was CAD $12.99 per pound. Lobster meat was CAD $38.99 per pound. An internet price search of Maine lobster found whole lobster prices slightly lower at about $8.99 per pound (about CAD $11.80)  but lobster meat more expensive at $50-60. The higher price for US lobster meat may be due to the difficulty in finding immigrant labor. (I discussed the shortage of immigrant work visas in an article last year.)

American buyers benefitted from a favorable exchange rate in which one Canadian dollar was equal to about 75 US cents. Customers from China and other countries also benefit from the softer Canadian dollar when they buy lobster from Canadian companies. Taxes on American imports and the better exchange rate have combined to sharply boost Canadian exports.

“Our sales to China have increased dramatically this year – around 30 to 40 percent – compared to last year,” David Xu, China representative for lobster exporter ZF Max International, told Seafood Source.

Canada has also benefitted from a new free trade agreement with Europe. In 2017, Canada and the EU signed the Comprehensive Economic and Trade Agreement. One of the provisions of this treaty is that Canadian lobsters can be imported to Europe without a tariff. In contrast, European buyers must pay an eight percent tax on American lobster. US lobster shipments to Europe fell 47 percent as a result of the deal reported the Portland Press Herald. To protect themselves, many American companies are moving at least part of their operation to Canada.

Adding insult to injury for American lobstermen, Canadian lobster is often shipped through the United States to buyers in China and elsewhere. There are far more flights out of Boston and Maine than Canada’s maritime provinces so lobster that is landed and sold in Canada is often trucked to US airports where it is then flown around the world. Because the lobster came from Canada and was not sold in the US, it isn’t subject to Mr. Trump’s (or Mr. Xi’s) tariffs.

The plight of Maine’s lobstermen may not concern President Trump because most of them didn’t vote for him. In 2016, the coastal districts where the fishermen live voted for Hillary Clinton, giving her three of the state’s four electoral votes. However, the same story is being played out in American agriculture around the country, including in many red states. American farmers are losing export opportunities while foreign competitors such as Australia, Brazil, Canada, Chile, and New Zealand take over markets that were formerly dominated by the US.

Maybe those exports from the US will resume after the trade war is resolved, but maybe they won’t. Business relationships are being forged between America’s competitors and our former customers. If President Trump is re-elected then foreign customers will be leery of doing business with American companies due to the president’s habit of implementing new tariffs on short notice.

A major complaint of businesses during the Obama Administration was the unstable regulatory environment in which it was difficult to make long-term plans. That problem is worse for many businesses under President Trump. As a businessman, Donald Trump should know that business partners value reliability.

At the same time that I was on my trip, China reduced its tariffs, not on US imports but on those from competing countries. In a move calculated to further reduce American exports, China eased the import tax burden on products from countries that compete directly with American goods.

The trade war goes on and American lobstermen and farmers and manufacturers wait to see if they will be able to sell what they produce while they operate at a disadvantage in one of the world’s largest markets. In the meantime, our neighbor to the north is among the countries reaping the benefits of Donald Trump’s tariff policy.

So, if you happen to be in Canada’s maritime provinces, you can enjoy a good deal on some very fresh lobster. While you’re there, take in the beautiful scenery along the Bay of Fundy, benefit from a favorable exchange rate, and enjoy Canadian hospitality, which is a lot like Southern hospitality without the 90-degree temperatures and oppressive humidity.

And while you’re there, take just a minute to think about President Trump’s gross misunderstanding of international trade, eh?

Originally published on The Resurgent

Kamala Harris' Health Insurance Gaffe

Kamala Harris was widely considered to have been the big winner in last night’s Democratic debate but in the midst of the evening, she committed a gaffe that she was forced to walk back this morning. The radical Democratic candidate seems to realize that she went a little too far to the left when asked about abolishing private health insurance.

At one point in the evening, moderator Lester Holt of NBC News asked the 10 candidates to raise their hands if they would “abolish their private health insurance in favor of a government-run plan.” Only Harris and Bernie Sanders raised their hands.

In the light of day, the answer must not seem as good as it did in a room full of Democratic activists because the California senator qualified her position on private health insurance this morning on MSNBC’s “Morning Joe.” On the show, Harris said that she misunderstood the question.

“Once and for all, do you believe that private insurance should be eliminated in this country?” co-host Willie Geist asked Harris.

“No,” Harris answered, adding, “But the question was, ‘Would you give up your private insurance for that option?’ And I said yes.”

“Oh, I think you heard it differently than others, then,” Geist said.

“Probably, because that's what I heard,” Harris replied.

Harris then stated, “I am a proponent of ‘Medicare for All,” adding that she would not eliminate private health insurance but  that it “will exist for supplemental coverage.”

Later in the interview, Geist pressed Harris again, asking, “So, to boil it down, Medicare for All, available to everyone if they want it, but if they have private insurance, they keep it?”

“For supplemental. For supplemental coverage,” Harris said. “Otherwise, they're in Medicare for All.”

In essence, it seems that Harris originally told the truth when she said that she supported abolishing private health insurance in exchange for Medicare for All. Even if her plan leaves private insurers intact for supplemental coverage, most Americans would lose their current health insurance, which was the gist of the question.

Harris’ position also leaves open the question of why Americans would need supplemental health insurance if Medicare for All is the be-all-end-all of health insurance and would include dental and vision coverage. Whatever the reason, under Harris’ plan, Americans would face both higher taxes for nationalized healthcare and premiums for a supplemental private plan. It doesn’t sound like a great deal.

Voters agree. While polling often shows support for single-payer plans such as Medicare for All, that support plummets when voters find out more details about the plan. Voters don’t like the idea that federal healthcare could increase wait times for care or that it would dramatically increase taxes.

Other polls cast doubt on the idea that voters are willing to blow up the healthcare system. Real Clear Politics found in May that less than a third of voters want a completely new system. A large majority, 68 percent, want to make improvements to the current system.

Even if voters are scared away from Kamala Harris by her threats to toss out the current health insurance system, healthcare does represent a weakness for Republicans. Healthcare is a top issue for voters and the GOP has been silent on the topic since its abortive attempt to repeal Obamacare in 2017. Since then Republicans have focused on tariffs and illegal immigration, issues where they are at odds with the majority of Americans.

Republicans of the Bush era failed to address Americans concerns about the high cost of healthcare. That failure led directly to the election of Barack Obama and the implementation of the Affordable Care Act. It could be that history is repeating itself as the Republican failure to present a viable alternative to Obamacare may lead to the passage of an even more radical government takeover of the healthcare industry under the next president.

Originally published on the Resurgent

Did Biden Blow It?

This morning the talk of the internet is Joe Biden’s performance in the Democratic primary debate last night. After Kamala Harris viciously attacked Biden (see the clip here) over his failure to support forced busing, a 1970s era issue, many pundits are saying that the former vice president is down for the count. I’m not so sure.

Biden definitely took some hard hits in the debate, but that doesn’t necessarily translate into lost support. The real question is what Democratic voters want in a candidate. That question is one that most observers have been wrong on so far in the campaign.

The fact is that most observers and progressive Tweeters have been predicting Biden’s demise since before he even launched his campaign. The premise was that Joe Biden was gaffe-prone and not radical enough for the modern Democratic Party. That was before Biden jumped into the race and took a consistent double-digit polling lead after pulling in an impressive $6.3 million in donations in his first 24 hours. For two months, the naysayers have been proven wrong.

The problem seems to be in the assumption that radical leftist Twitter represents the Democratic Party as a whole. While there is definitely a very radical Democrat left wing, polling so far suggests that it may not be as large as many observers have assumed. This is particularly true after two years of Donald Trump’s Administration has pushed many moderate and conservative voters toward the Democrats.

A number of polls over the past few months have lent credence to the idea that many Democratic voters are moderates. In March, an NBC/Wall St. Journal poll found that 54 percent of Democrats considered themselves as moderate or conservative. A Real Clear Politics poll from the same month showed that 38 percent of Democrats rated themselves in the middle. In April, a CNN poll also found that 54 percent of Democrats were moderate or conservative, up from 47 percent in 2018.

Polls can be easily dismissed, but election results are something else entirely. National exit polls from the 2018 midterms showed that Democrats won 62 percent of moderates and a whopping 16 percent of conservatives. By way of comparison, Democrats won only 52 percent of moderates in 2016 but maintained the 16 percent share of conservatives.

Polling also shows that most Democrats don’t favor a radical nominee. A Fox News poll from June found that more than 70 percent of Democrats want a unifying candidate over one who will fight the right-wing. Likewise, more than 70 percent want “steady, reliable leadership” rather than “a bold, new agenda.” Another June poll from USC Dornsife/Los Angeles Times revealed that more than half of Democrats believed that a white, male candidate would stand the best chance of defeating Donald Trump. Voters in the poll thought that Joe Biden and Bernie Sanders were most likely to beat Trump.

As I’ve predicted for months, Joe Biden is benefitting from being the only first-tier candidate in the moderate lane of Democratic primary. If about half of Democrats are conservative or moderate, then Biden has been getting support from about 80-90 percent of this wing of the party. The remainder is split between candidates such as Beto O’Rourke, Amy Klobuchar, Tim Ryan, Andrew Yang, and John Delaney, who are each polling at five percent or less.

Meanwhile, a number of top-tier candidates are vying for a share of the half of the party that is liberal. Bernie Sanders, Kamala Harris, Elizabeth Warren, and Pete Buttigieg collectively poll at about 50 percent, but when that wing of the party is split four ways they each run a distant second to Joe Biden.

The big question from the debate is whether Joe Biden’s debate performance will sour moderates and conservatives on his candidacy and, if so, where they will go. It is difficult to imagine conservative Democrats rallying behind any of the other top four candidates due to their radical platforms.

A CNN poll from May asked Democratic voters about their second choice candidates. Biden was the top second choice followed by Elizabeth Warren, Bernie Sanders, and Kamala Harris. Buttigieg finished a distant fifth in this survey.

Further, Biden’s debate performance was not as disastrous as many observers would have you believe. Aside from the exchange with Harris, Biden was largely stable and avoided making serious gaffes. His calm demeanor may be what many voters are looking for as the antithesis to Donald Trump’s exhausting personality.

Despite attacks on Biden’s racial record from 40 years ago, he has also been the frontrunner among black Democrats. Polling has put Biden’s support among blacks even higher than his support from the Democratic Party as a whole, approaching 50 percent even with minority candidates in the race.

In fact, Biden’s pitch last night was that he was running as a third term for Barack Obama. While President Obama has never been popular with Republicans and has lost favor with Democrats, Obama is still popular with moderates, boasting a 56 percent positive rating. The appeal of his past association with Obama is especially strong for black voters and Millennials.

Given the mathematics of the Democratic primary, I seriously doubt that the debate will erode his frontrunner status. There are simply too many moderate voters in the Democratic Party who are being ignored by the other top candidates. If you are a moderate Democrat, the calls from the other top candidates to abolish private health insurance, raise taxes, and take away guns may not be very appealing.

At the same time, Biden does need to put on his game face and prepare for his next encounter. If he cannot convince voters that he can go toe-to-toe with Donald Trump then his supporters may leave him for candidates that they see as more electable. The former vice president is not done yet, but he needs to show voters that he is still “Scrappy Joe” and not “Sleepy Joe.”

Originally published on The Resurgent

  

Supreme Court Rules On Census And Gerrymandering

Two new rulings from the Supreme Court have addressed questions regarding the citizenship question on the 2020 census and partisan gerrymandering of congressional districts. In a defeat for the Trump Administration, the Court referred the citizenship question back to the lower court. The Court also distanced the judicial branch from questions of partisan rigging of congressional districts.

On the census question, Chief Justice John Roberts joined the Court’s four liberal justices in a decision that held that the Commerce Department’s justification for adding the citizenship question, that the government wanted to use the data to better enforce voting rights laws, was a pretext after evidence was found in the estate of deceased Republican strategist that suggested that the use of a citizenship question could provide whites and Republicans with an electoral advantage after the next redistricting.

A federal judge in New York ruled that Commerce Secretary Wilbur Ross had committed “smorgasbord of classic, clear-cut violations” of federal laws governing administrative agencies in including the question. The Court returned the case to the lower courts for additional consideration but ruled that Wilbur Ross could not be deposed.

The Court left the door open to further appeal by the Trump Administration noting that it was reasonable to use a citizenship question on the census rather than administrative records as the Census Bureau recommended even if the tactic resulted in a lower response rate from Hispanic households. The problem found by the Court was that Ross’s rationale was not supported by evidence.

“The evidence showed,” Roberts wrote, that Ross “was determined to reinstate a citizenship question from the time he entered office; instructed his staff to make it happen; waited while Commerce officials explored whether another agency would request census-based citizenship data; subsequently contacted the Attorney General himself to ask if DOJ would make the request; and adopted the Voting Rights Act rationale late in the process.”

When “the evidence tells a story that does not match the explanation the Secretary gave for his decision,” Roberts continued, judicial review calls for “something better than the explanation offered for the action taken in this case.”

On the question of gerrymandering, drawing congressional districts for maximum partisan gain, the Court ruled in a 5-4 decision that, while the process is distasteful, gerrymandering is a problem for politicians rather than the courts.

In a decision also written by Chief Justice Roberts, the Court held that there was no constitutional requirement for proportional representation in congressional districts. Congressional districts do not have to reflect the proportion of a party’s statewide vote.

“Nothing in the Constitution provides standards to decide what is fair,” wrote Roberts.

Roberts suggested that there were other alternatives for addressing the gerrymandering problem. For example, either Congress or the states could mandate that redistricting be done by independent commissions rather than by partisan legislators.

Roberts was joined in the majority on this case by Justices Clarence Thomas, Samuel Alito, Neal Gorsuch, and Brett Kavanaugh.

Originally published on The Resurgent