Trump administration allegedly to hoist ‘toxic pseudo-constitutional sludge’ up the flagpole and see if it flies

Census

Garrett Epps thinks he—even he, mournfully, is not quite so confident—puts an end to the notion of Donald Trump getting his oh-so-precious citizenship question in the 2020 Census, legally at least. It’s not really a question of the Constitution, he writes: “Not to put too fine a point on it, I haven’t had to wade through such toxic pseudo-constitutional sludge since the last time I sneaked into an Oregon militia meeting.” He believes arguments in support of a do-over simply don’t fly. Which, for him, leaves a question of whether Trump will defy the Supreme Court.[1]

The aforementioned “sludge” explicitly includes[2] Hugh Hewitt’s argument for an executive order and not one but three questions, including one explicitly on legal status,[3] and Josh Blackmun’s argument citing the 14th and 15th Amendments.[4]

I want to believe Epps. But it’s important to note that these mother fuckers are all—each and every damned one of them—lawyers. I hope Epps is right. But the scorn he heaps on his colleagues’ arguments might be over the top.

Garrett Epps, “The Census Case Could Provoke a Constitutional Crisis,” Atlantic, July 8, 2019, https://www.theatlantic.com/ideas/archive/2019/07/census-case-could-provoke-constitutional-crisis/593425/

Josh Gerstein, “Justice Department replaces attorneys in census citizenship-question battle,” Politico, July 8, 2019, https://www.politico.com/story/2019/07/08/justice-department-census-citizenship-question-battle-1399523

J. M. Rieger, “The Trump administration has changed its story on the census citizenship question at least 10 times in four months,” Washington Post, July 8, 2019, https://www.washingtonpost.com/politics/2019/07/08/trump-administration-has-changed-its-story-census-citizenship-question-least-times-four-months/


Nancy Pelosi

Amber Phillips, “Nancy Pelosi’s clumsy rebuke of the liberals in her party,” Washington Post, July 8, 2019, https://www.washingtonpost.com/politics/2019/07/08/nancy-pelosis-clumsy-rebuke-liberals-her-party/


  1. [1]Garrett Epps, “The Census Case Could Provoke a Constitutional Crisis,” Atlantic, July 8, 2019, https://www.theatlantic.com/ideas/archive/2019/07/census-case-could-provoke-constitutional-crisis/593425/
  2. [2]Garrett Epps, “The Census Case Could Provoke a Constitutional Crisis,” Atlantic, July 8, 2019, https://www.theatlantic.com/ideas/archive/2019/07/census-case-could-provoke-constitutional-crisis/593425/
  3. [3]Hugh Hewitt, “The census belongs to the president. He needs to get it back. Here’s how,” Washington Post, June 29, 2019, https://www.washingtonpost.com/opinions/2019/06/29/census-belongs-president-he-needs-get-it-back-heres-how/
  4. [4]Josh Blackman, quoted at length in Eugene Volokh, “Is the Government Required to Count the Number of Citizens in Each State?” Reason, April 25, 2019, https://reason.com/2019/04/25/is-the-government-required-to-count-the-number-of-citizens-in-each-state/

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