Support The Bulwark and subscribe today.
  Join Now

Courting Disaster

When Congress won’t do its job, the fate of American democracy is left in the hands of unelected judges.
June 17, 2019
Courting Disaster

These days, it is looking more and more like the federal courts—and possibly a slim majority of the Supreme Court—will be deciding issues that belong in the hands of Congress and the voters. This is not inevitable. It’s the untoward result of a corrupt White House and a feckless Congress.

In the three-legged stool that is the federal government, the federal courts are poised to operate as the last frontier for shoring up American democracy—or not—because the other two legs are broken.

President Trump and the Democratic majority in the House of Representatives are in a bitter standoff over Congress’s legal “right” to investigate the White House. Team Trump claims that the wrap-up of Special Counsel Robert Mueller’s investigation put the nail in the coffin of all things Russian interference. (The coffin reopened this week when Trump told ABC’s George Stephanopoulos that he’d accept dirt on an American political opponent from an adverse foreign government if offered up in the next election.) Meanwhile, the House Oversight Committee voted to hold two of Trump’s Cabinet officials in contempt for refusing to comply with congressional subpoenas seeking information regarding the controversial decision to ask about respondents’ citizenship in the 2020 census.

The legality of the census question is already teed up for Supreme Court review this term. The contempt vote means that the question of whether Congress can get information from the White House relating to the same issue—and whether the president’s sweeping claims of executive privilege are valid (unlikely)—could also wind up in the courts.

For their part, Republicans comprising the Senate majority have made very clear that oversight of the current executive branch is off the table. (Query whether they’d roar back to constitutional life if they were to wind up holding the Senate majority alongside a future Democratic president. The cynically political answer is likely “yes”).

Democrats are mired in an internal kerfuffle over whether to begin impeachment hearings. But impeachment aside, they’ve been painfully slow to engage in basic oversight that’s their right — and duty — as part of the legislative process (just ask Attorney General William Barr, who said as much in a 1989 memorandum he prepared as an assistant attorney general in the Department of Justice’s Office of Legal Counsel).

To be sure, Elijah Cummings (D-Md.) just announced that the House Oversight and Reform Committee he chairs will hold a hearing into an official recommendation that White House counselor Kellyanne Conway be fired for Hatch Act violations. The statute prohibits federal employees from participating in elections in their official capacities (doing so on their own personal time is just fine).

But what about everything else that’s amiss in Trumpland? The Democrats’ anemic foray into investigating the Mueller report—which so far has largely involved calling the former White House counsel to President Nixon, John Dean, to testify about his zero first-hand knowledge into Russian interference in the 2016 election—was hardly rigorous.

The two broken legs of the three-legged stool of democracy leaves concerned Americans with nowhere else to go for electoral accountability but the third branch of government: the unelected federal judiciary.

This is unfortunate, for two reasons.

First, federal judges are not elected. They serve for life, so if they get things wrong, they can’t be fired at the ballot box.

Second, if the Supreme Court “sees” a constitutional question in something like the U.S. census form—or, say, in the ability to get an abortion, or in a corporation’s attempt to give money to a campaign—then the question becomes constitutionalized. The court’s resolution of a constitutionalized issue cannot be altered without a constitutional amendment or a rare reversal by a future Court. This is why, for example, the primary obstacle to campaign finance reform today remains the Supreme Court’s 2010 conclusion that the legal fictions we call “corporations” are protected by the First Amendment (in addition to the actual human beings who work for them, mind you).

In the pending census case, the court will decide whether the Commerce Department’s decision to ask about citizenship complied with the procedures it must follow for making census-related decisions under a statute called the Administrative Procedure Act. The court could strike the measure down on statutory grounds, leaving the constitutional issues aside. Or it could constitutionalize the citizenship question by addressing whether it violates the Enumeration Clause of the Constitution, which provides that “Representatives [of Congress] shall be apportioned among several states … according to their respective numbers” every 10 years.  

Critics argue that the citizenship question will disincentivize certain people (disproportionately those of color) from responding to the census for fear of provoking the ire of immigration authorities. And that it would do so for no good reason. After all, the census historically has been about counting heads—not citizens. As the Supreme Court has explained, the Commerce Secretary must administer the census in way that has “a reasonable relationship to the accomplishment of an actual enumeration of the population.” Fewer heads translate into less money and a reduced representation in Congress for states that house a lot of immigrants—even if such non-citizens pay state taxes and abide by state laws.

In short, the concern here is that the Supreme Court will bless state-sanctioned discrimination.

No doubt, if the court condones the Commerce Department’s action, it will be construed as yet another unfortunate statement that remedying government actors’ apparent discriminatory intent is less important than shoring up executive power. In the court’s decision upholding Trump’s revised travel ban, for example, the majority similarly sidestepped evidence of Trump’s racial animus to conclude that it didn’t really matter so long as the White House gave a facially legitimate excuse for the president’s executive order lowering the number of refugees admitted into the United States from certain countries, many with high Muslim populations. A majority of the court could do the same thing with the census case and conclude that the Constitution doesn’t care about racial animus so long as citizenship is relevant to some other ostensible government purpose (even if it’s not the real purpose).

The Supreme Court should avoid venturing into such dark territory. Another suggestion that strong presidential power is more important than addressing racially discriminatory intent against individual citizens would fly in the face of how the Constitution was structured in the first place. The document was drafted for “We the People,” after all, and reflected a brazen rejection of concentrated government power.

Yet in a country of 327 million, issues of deep cultural, ethical, and philosophical significance are being left to five individuals who are structurally unaccountable to the people. What is the court’s proper role here? Is it to protect the individual or the institution of the presidency?

This is very the political divide that’s dividing the country. It’s too bad that Congress isn’t doing its job for the people it serves.

Kimberly Wehle

Kimberly Wehle is a contributor to The Bulwark. She served as an assistant U.S. attorney and an associate independent counsel in the Whitewater investigation. She is currently a professor at the University of Baltimore School of Law. An ABC News legal contributor, she is the author of three books with HarperCollins: How to Read the Constitution—and Why, What You Need to Know About Voting—and Why, and, most recently, How to Think Like a Lawyer and Why—A Common-Sense Guide to Everyday Dilemmas. Her new book, Pardon Power: How the Pardon System Works—and Why, is forthcoming in September 2024 from Woodhall Press. @kimwehle.