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Author Topic: The American Constitution  (Read 33865 times)

Alan Klein

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Re: The American Constitution
« Reply #1220 on: July 09, 2019, 11:33:05 am »

Except that the census isn't actual counting either. The census asks some people questions and extrapolates. If the question is so important and there are good reasons for asking it, why did they lie about why they wanted to include it, and lie about the timetable for printing the forms?
Because the lawyers are a bunch of morons.  That's why Trump fired them.  I've had bad lawyers that I had to fire too.  They should have presented the rationale to take an actual count to prove the estimates they get in off years.  They also should have added that the information is important enough otherwise the questions wouldn't have been included in previous years long before Trump became president. After all, SCOTUS admitted the question was constitutional.  It was just that their rationale was bogus because they tried to tie it to the Voting Rights Act and other BS and were caught with their pants down.  Dummies! 

James Clark

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Re: The American Constitution
« Reply #1221 on: July 09, 2019, 11:51:28 am »

Because the lawyers are a bunch of morons.  That's why Trump fired them.  I've had bad lawyers that I had to fire too.  They should have presented the rationale to take an actual count to prove the estimates they get in off years.  They also should have added that the information is important enough otherwise the questions wouldn't have been included in previous years long before Trump became president. After all, SCOTUS admitted the question was constitutional.  It was just that their rationale was bogus because they tried to tie it to the Voting Rights Act and other BS and were caught with their pants down.  Dummies!

Alan, the attorneys in question were "fired" because they don't want to/have refused to go in front of a federal judge of the USSC and spin obvious lies that are contradicted by their previous DIFFERENT lies and fairly clear evidence that the whole process if founded on the goal of assisting Republican representation, whatever other rational there might be.  (See Ban, Muslim)  That's generally considered bad for a government attorney's career, y'know?

How many times have we seen people in Trump's orbit say one thing, only to be directly contradicted by Trump hours or days later?  What do you suppose happens when the statement that is later contradicted is given by an attorney as a factual representation in front of a federal judge?  You think the judge is just like, "hey, ok - so that testimony was totally made up?  Cool.  Let's proceed."
« Last Edit: July 09, 2019, 11:59:52 am by James Clark »
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Alan Klein

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Re: The American Constitution
« Reply #1222 on: July 09, 2019, 11:58:47 am »

There's is nothing in my rationale that would have been lies.  They were dummies for not using it in the first place.

James Clark

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Re: The American Constitution
« Reply #1223 on: July 09, 2019, 12:02:06 pm »

There's is nothing in my rationale that would have been lies.  They were dummies for not using it in the first place.

Sure, but that would have been the normal way to do it.  Come up with a political goal, create a rationale, and stick by it to the bitter end, even though it *just happens* to benefit Republicans in terms of representation.  After all, that's just a happy circumstance, right?  (Dems do this too, obviously.)

But these guys, nah, they can't manage that because the CinC can't keep his Twitter-hole shut, and no one want to give sworn testimony in front of a judge that their boss is going to blow out of the water the next day.
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Slobodan Blagojevic

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Re: The American Constitution
« Reply #1224 on: July 09, 2019, 12:13:58 pm »

Rep. AOC Questions Secretary Wilbur Ross: 'Why Are We Violating The Law?'

Just goes to prove her stupidity*. It is a loaded question, i.e., one with the presumption of guilt.

* or 'hood street smarts, at the level of Yo Momma jokes

Bart_van_der_Wolf

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Re: The American Constitution
« Reply #1225 on: July 09, 2019, 12:24:37 pm »

Just goes to prove her stupidity*. It is a loaded question, i.e., one with the presumption of guilt.

The judges have already determined that Secr. Ross has lied to Congress. That's passed the point of presumption, it is guilt.
So it's more a statement of fact than a presumption.

Cheers,
Bart
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== If you do what you did, you'll get what you got. ==

Alan Goldhammer

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Re: The American Constitution
« Reply #1226 on: July 09, 2019, 12:36:59 pm »

There's is nothing in my rationale that would have been lies.  They were dummies for not using it in the first place.
You are confusing the lawyers for the Dept of Justice who refused to lie about what they were doing with those from the Department of Commerce who came up with the original proposal.
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Slobodan Blagojevic

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Re: The American Constitution
« Reply #1227 on: July 09, 2019, 12:53:59 pm »

The judges have already determined that Secr. Ross has lied to Congress. That's passed the point of presumption, it is guilt.
So it's more a statement of fact than a presumption.

Again, it is a sheer stupidity. If he violated the law, the law would have dealt with him. It is utterly irrelevant to ask "why did you do it," except for melodramatic purposes, which she is good at, and pandering to her idiotic base.

faberryman

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Re: The American Constitution
« Reply #1228 on: July 09, 2019, 12:57:48 pm »

Again, it is a sheer stupidity. If he violated the law, the law would have dealt with him.
It is unlikely that Trump's DOJ is going to indict Trump's Secretary of Commerce for lying to Congress about the census question. They are in on it.
« Last Edit: July 09, 2019, 01:01:00 pm by faberryman »
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Alan Klein

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Re: The American Constitution
« Reply #1229 on: July 09, 2019, 01:01:09 pm »

Sure, but that would have been the normal way to do it.  Come up with a political goal, create a rationale, and stick by it to the bitter end, even though it *just happens* to benefit Republicans in terms of representation.  After all, that's just a happy circumstance, right?  (Dems do this too, obviously.)

But these guys, nah, they can't manage that because the CinC can't keep his Twitter-hole shut, and no one want to give sworn testimony in front of a judge that their boss is going to blow out of the water the next day.
I'm glad we agree it's just politics. You think the dummies would have learned from the Muslim ban.

Slobodan Blagojevic

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Re: The American Constitution
« Reply #1230 on: July 09, 2019, 01:03:33 pm »

It is unlikely Trump's DOJ is going to indict Trumps Secretary of Commerce for lying about the census question.

Right. That is why we have no gazillion court cases against Trump at the moment.

Alan Klein

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Re: The American Constitution
« Reply #1231 on: July 09, 2019, 02:59:07 pm »

Just goes to prove her stupidity*. It is a loaded question, i.e., one with the presumption of guilt.

* or 'hood street smarts, at the level of Yo Momma jokes
When did you stop beating your wife?

Alan Klein

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Re: The American Constitution
« Reply #1232 on: July 09, 2019, 03:01:43 pm »

I'm shocked, simply shocked , that politicians would do things for political reasons.

Chris Kern

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Re: The American Constitution
« Reply #1233 on: July 09, 2019, 03:13:00 pm »

I've been following the argument here over the Supreme Court's decision regarding the inclusion of citizenship question, but I've been reluctant to weigh in because, frankly, the confusion is so great I didn't know where to start.

First of all, what happened in the case that reached the Supreme Court is that a number of individual states. counties, and cities brought a lawsuit in a federal district court in New York (i.e., a federal trial court), asserting that their populations would be undercounted if a citizenship question was included in the census because that would deter certain respondents from completing the census questionnaires.  They claimed the Commerce Department had violated a statute, the Administrative Procedure Act, which sets forth rules for how federal agencies are to apply the discretion granted to them by Congress pursuant to other, substantive (i.e., as opposed to procedural) statutes.

A "bench" trial was held (i.e., at the request of all parties, the judge rather than a jury acted as the fact-finder), after which the judge determined that the rationale offered by the Commerce Department was inadequate to meet the requirements of the Administrative Procedure Act.  The trial judge ordered the Commerce Department to provide whatever additional evidence was available in the Department's administrative record to demonstrate that it had in fact met the statutory requirements leading to the decision to include the citizenship question.

In addition, the judge approved a request by the plaintiffs for additional fact-finding beyond the Department's administrative record because the plaintiffs had demonstrated that they might be able to produce credible evidence that Secretary of Commerce Wilbur Ross had acted in bad faith when he instructed his subordinates in the Commerce Department to add the citizenship question.  The judge authorized the plaintiffs to acquire additional information from the government and to have certain Department of Commerce and Department of Justice officials provide depositions.

At the conclusion of this additional fact-finding, the district judge ruled that the government's decision to include the citizenship question was based on a rationale that was "arbitrary and capricious" (namely, a now-apparently-abandoned claim that Secretary of Commerce Ross decided to add the question in response to a Justice Department request for information needed to enforce a civil rights law).

The federal government appealed the district judge's decision.  Normally such an appeal would be heard by the circuit court of appeals with jurisdiction over the trial court, but the government made an extraordinary request that the circuit court appeal be skipped and that the Supreme Court review the judge's decision directly because it was essential that the litigation be definitively concluded before July 1 in order for the paper census forms to be printed.

The Supreme Court agreed that the request to bypass the circuit court of appeals was justified in view of the imminent deadline for printing the forms.  The Court concluded that the evidence produced at trial did indeed demonstrate that the justification offered for the citizenship question was a pretext, and therefore that the rationale did not meet the requirements of the Administrative Procedure Act.  The Supreme Court decision of June 27 does not end the litigation.  It remanded the case to the district court for additional fact-gathering and conclusions of law consistent with the Supreme Court opinion; these in turn may be appealed depending on how the trial judge rules.

The lawyers for the Justice Department who argued the case before the Supreme Court—or the trial court, for that matter—were not responsible for developing the rationale offered by the Commerce Department for including the question.  They simply presented the evidence provided by the Department from its administrative record and, during the Supreme Court appeal, argued that the evidence was legally sufficient to comply with the requirements of the Administrative Procedure Act.

Any additional evidence that the Department of Commerce produces will be part of the extended fact-finding by the district judge.  He will also be able to consider evidence beyond the administrative record because the plaintiffs have made a strong showing that Commerce Secretary Ross acted in bad faith.  It appears that Secretary Ross himself may now be required to provide a deposition in the case.

The Trump Administration reportedly may now offer a different rationale for the citizenship question.  Note that if it does, the new rationale must be based on evidence collected from the existing administrative record of the Department of Commerce.  It's not simply a matter of coming up with a new explanation: there needs to be a factual showing from the record that the new explanation was indeed the real reason for including the question.

The reason the lawyers who conducted the original litigation asked to be excused from further participation in the case is to avoid an ethical conflict of implicitly contradicting the evidence previously provided by the Department of Commerce which they presented to the trial judge.

Another approach President Trump and Attorney General Barr appear to be considering would be to abandon the New York litigation and use an executive order or some other as-yet-unspecified technique to require the citizenship to be inserted in the census.  They might be able to end the current litigation in New York by doing that, but probably not another case that is awaiting trial in a federal court in Maryland.

And, of course, any executive order is likely to be challenged in new litigation as exceeding the president's authority—Congress by statute explicitly delegated the authority to determine the content of the census to the Secretary of Commerce—or as inconsistent with the requirements of the Administrative Procedure Act.

However, unless Congress changes the law, the Secretary of Commerce is still authorized to determine the content of the census.  There is nothing to prevent the Commerce Department from starting a new process to comply with the rules specified in the Administrative Procedure Act, conclude that there is a valid reason to ask respondents whether they are U.S. citizens, and arrange to insert that question in the decennial census.  Not next year's census, perhaps, but there is plenty of time to build a record that will stand up in court for the census that will be conducted in 2030.

faberryman

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Re: The American Constitution
« Reply #1234 on: July 09, 2019, 03:20:35 pm »

I've been following the argument here over the Supreme Court's decision regarding the inclusion of citizenship question, but I've been reluctant to weigh in because, frankly, the confusion is so great I didn't know where to start.
Thank you for taking the time to set forth the facts of the case. Hopefully, your effort will not be in vain. Note that hope and optimism are not the same thing.

RSL

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Re: The American Constitution
« Reply #1235 on: July 09, 2019, 03:50:51 pm »

Just goes to prove her stupidity*. It is a loaded question, i.e., one with the presumption of guilt.

* or 'hood street smarts, at the level of Yo Momma jokes

Or to put it a different way, it's a classic example of begging the question.

Alan Klein

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Re: The American Constitution
« Reply #1236 on: July 09, 2019, 04:01:12 pm »

Chris: Thanks for the informative executive summary.  Do you know what was argument Commerce made to satisfy the Administrative Act and why did the courts say it was not enough?

Could the argument that putting the question in the census to corroborate estimates made in off years of quantity of citizen, non-citizens, etc would satisfy the Administrative Act?  Could those arguments be made satisfying the evidence already produced by the Commerce Dept or would the courts reject them as new evidence?  Tks. Alan.

Chris Kern

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Re: The American Constitution
« Reply #1237 on: July 09, 2019, 05:13:57 pm »

Do you know what was argument Commerce made to satisfy the Administrative Act and why did the courts say it was not enough?

I don't have access to the trial court record, but the Supreme Court opinion indicates that the evidence produced by Commerce at trial was grounded in the claim by Wilbur Ross, now reportedly abandoned by the government, that he was responding to a request from the Department of Justice that it needed the question about citizenship to be included in order to enforce the Voting Rights Act.  The trial court described this as "pretextual" (i.e., a pretext), and instructed the Department of Commerce to provide additional evidence if it was available in the administrative record.

Quote
Could the argument that putting the question in the census to corroborate estimates made in off years of quantity of citizen, non-citizens, etc would satisfy the Administrative Act?  Could those arguments be made satisfying the evidence already produced by the Commerce Dept or would the courts reject them as new evidence?

I can't predict the course of future litigation but, again, the issue here is the evidence that's in the administrative record of the Department of Commerce.  It's not a matter of what the government argues: you don't argue evidence, you either have it and produce it or you don't.  Plus, because the plaintiffs were able to make a credible showing that Secretary Ross acted in bad faith, the district court has approved the plaintiffs' request for further discovery (documents or other information in the possession of the government requested by the plaintiffs), including depositions by key officials.  It appears these may include one by Secretary Ross, himself.  He could face a difficult decision about what to say, depending on what other evidence the plaintiffs have acquired and can produce in court, since his deposition would be under oath.

My own conclusions based on what I've read are:
  • The Secretary of Commerce clearly has the authority to order that a question regarding citizenship be included in the census as long as he has a rational basis for doing so and the purpose for including it is not otherwise prohibited by law.
  • It is unlikely that other appeals in this case will be handled in an expedited manner since the justification for the extraordinary hearing by the Supreme Court was that the litigation had to be definitively resolved prior to the July 1 deadline for printing the census forms.  The deadline has passed and the forms are being printed without the citizenship question, so that justification is moot.
  • It is likely that other legal challenges to the inclusion of the citizenship question will proceed, and that if the Administration tries to force the inclusion of the question by the issuance of an executive order or some other nonstandard technique, the new approach will also be challenged in court.
  • It is now all but impossible for the citizenship question to be included in the 2020 census.  Maybe 2030, but since the professionals at the Census Bureau reportedly have already determined (1) that the sample surveys provide the information the government needs regarding the distribution of citizens and noncitizens in the population to meet its statutory responsibilities and (2) that asking such a question as part of the decennial census would result in undercounting, contrary to the intent of the Constitution, I suspect even a future Republican administration would be wary about trying this again.
I would be surprised if anyone at the Department of Justice, including Attorney General William Barr, would take issue with any of these conclusions.  But when President Trump wants something, he wants it, and he is not about to be deflected by arguments based on law or established administrative procedure.  I suspect Barr, and the other political appointees at Justice, are going along with a last-ditch attempt to salvage this policy as a matter of self-preservation, rather than a belief that it will somehow prevail.

Alan Goldhammer

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Re: The American Constitution
« Reply #1238 on: July 09, 2019, 05:22:00 pm »

My own conclusions based on what I've read are:
  • The Secretary of Commerce clearly has the authority to order that a question regarding citizenship be included in the census as long as he has a rational basis for doing so and the purpose for including it is not otherwise prohibited by law.
  • It is unlikely that other appeals in this case will be handled in an expedited manner since the justification for the extraordinary hearing by the Supreme Court was that the litigation had to be definitively resolved prior to the July 1 deadline for printing the census forms.  The deadline has passed and the forms are being printed without the citizenship question, so that justification is moot.
  • It is likely that other legal challenges to the inclusion of the citizenship question will proceed, and that if the Administration tries to force the inclusion of the question by the issuance of an executive order or some other nonstandard technique, the new approach will also be challenged in court.
  • It is now all but impossible for the citizenship question to be included in the 2020 census.  Maybe 2030, but since the professionals at the Census Bureau reportedly have already determined (1) that the sample surveys provide the information the government needs regarding the distribution of citizens and noncitizens in the population to meet its statutory responsibilities and (2) that asking such a question as part of the decennial census would result in undercounting, contrary to the intent of the Constitution, I suspect even a future Republican administration would be wary about trying this again.
I would be surprised if anyone at the Department of Justice, including Attorney General William Barr, would take issue with any of these conclusions.  But when President Trump wants something, he wants it, and he is not about to be deflected by arguments based on law or established administrative procedure.  I suspect Barr, and the other political appointees at Justice, are going along with a last-ditch attempt to salvage this policy as a matter of self-preservation, rather than a belief that it will somehow prevail.
Hi Chris, thanks for bringing up the APA  when I was still working at PhRMA in regulatory affairs, we filed two APA lawsuits and won both of them.  It's really easy for government agencies to screw up compliance.  I suspect the DOJ lawyers who were civil service and not political employees told their respective bosses that this was a loser and that's why they were replaced.  Unfortunately, President Trump does not understand the nuances of the law and will try to pressure DOJ to get the remedy he wants.  As Kenny Rogers once sung, "you got to know when to hold them and know when to fold them."  It's time to fold and move on.
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Alan Goldhammer

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Re: The American Constitution
« Reply #1239 on: July 09, 2019, 06:29:01 pm »

LOL, the Federal judge hearing the census case refused the Adminstration's request to swap out their legal team. 

“Defendants provide no reasons, let alone ‘satisfactory reasons,’ for the substitution of counsel,” Judge Furman wrote. He also noted that a filing in the case was due from the department in just three days, and that the department had previously pushed for the matter to be moved along quickly.

“If anything, that urgency — and the need for efficient judicial proceedings — has only grown since that time,” Furman wrote.
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