Things were not going well at Monday’s Supreme Court argument for the Trump administration’s last-minute bid to boot undocumented immigrants from the census for the first time in history. So Justice Samuel Alito, a partisan who has seldom met a Trump power grab he doesn’t like, decided to do something about it.
He launched a filibuster.
“I have two questions that are important to me; I hope I’m going to be able to squeeze them both in in my time,” he began. He then wasted one minute and seven seconds of the approximately two minutes each justice was allotted on a preamble that included telling the woman arguing against the Trump scheme: “I don’t really understand where your argument is going.”
Finally, Alito asked her a question — then cut off the answer after less than 20 seconds and dismissed her for relying on a “totally meaningless formality.”
He asked his second question, and the exchange went 30 seconds over his allowed time.
“Justice Sotomayor?” said Chief Justice John Roberts.
Alito ignored him. “If I can move on to my second — my second point,” he continued, then announced that this point had “six categories.”
By part three of his six-part third question, Alito had gone more than 90 seconds over time.
“Justice Sotomayor,” the chief justice said again.
“Uh, Chief—” Alito objected.
“Justice Sotomayor,” Roberts said, for a third time.
He had reason for his frustration, because it appeared Monday that even his colleagues in the court’s right-wing supermajority weren’t inclined to go along with Trump’s plan to shift congressional seats to Republicans by excluding undocumented immigrants — even though the Constitution calls for an “actual Enumeration” and a tally of the “whole number of persons” — not citizens — “in each State” for apportionment purposes.
“A lot of the historical evidence and longstanding practice really cuts against your position,” Justice Amy Coney Barrett, the newest Trump appointee, told Trump’s acting solicitor general, Jeffrey Wall. She asked him to concede that “illegal aliens have never been excluded as a category from the census.”
“Yes, and that’s the best argument on the other side,” Wall allowed.
Justice Stephen Breyer told Wall that “this has never happened before — that you excluded illegal aliens.” Unusually animated, Breyer challenged the Trump lawyer: “They’re ‘persons,’ aren’t they?”
Wall didn’t directly answer. He must be taking cues from the boss, too.
And the boss, at this moment, has set his sights on one thing: sabotage.
He’s trying to sow doubts about the integrity of the election he lost by 6.3 million votes. On Sunday, Trump’s madness extended to suggesting his own FBI and Justice Department may have conspired to commit election fraud against him.
Trump’s treasury secretary, Steve Mnuchin, is shutting down emergency Federal Reserve lending programs that the Fed says “serve their important role as a backstop for our still-strained and vulnerable economy.”
In the Senate, Majority Leader Mitch McConnell, after busting up a covid-relief deal between the White House and Democrats, is now entering his seventh month of blocking pandemic relief, exposing millions to potential hunger and eviction.
The absence of covid relief could in turn lead to a government shutdown in December — another potential shock to the economy — as Trump threatens to shoot down the annual defense bill for the first time in 60 years so that military bases will continue to honor Confederate generals.
And Trump just moved to strip job protections from hundreds of White House budget analysts and other experts, The Post’s Lisa Rein reports, part of an effort to make it easier to fire tens of thousands of civil servants.
The census sabotage is just as clumsy. Lawyer Dale Ho, arguing against the Trump plan, told the justices that the very dictionary the administration relies on for the case, Webster’s 1828 edition, “defines residence as distinct from nationality” — the exact opposite of Trump’s approach. Trump’s lawyer, Wall, acknowledged the administration has no clue how it’s going to pull off its identification and exclusion of undocumented immigrants.
Though Alito and Justice Clarence Thomas sounded comfortable with jettisoning the language of the Constitution to bless Trump’s political errand, the president’s best hope seems to be that the justices might let him attempt the exclusion of undocumented immigrants before the high court weighs in.
“But isn’t that going to be like having to unscramble the eggs?” Roberts asked.
Replied Wall: “I take the point that there is a bit of an omelet to unscramble.”
A bit? All Trump has been doing on the way out is smashing eggs.
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