Thread by @msbellows

Prediction: realizing Trump will order the Census to include the Q even if SCOTUS directly orders him not to, Roberts will decide that backing down and LETTING him add it is preferable to a constitutional crisis demonstrating the Court's impotence.

https://twitter.com/thehill/status/1147158918663168001

Following up on tweet above: in Worcester v Georgia, Chief Justice John Marshall – who understood better than any other jurist how precarious and dependent on comity the Supreme Court's power actually is – issued a ruling DESIGNED to be unenforceable:
en.m.wikipedia.org/wiki/Worcester…

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In Worcester, SCOTUS decreed that Indian nations were sovereign, and that states could not interfere with Indian rights as a matter of law. BUT, Marshall knew there was no way the Court could force states to abide by their decision unless the President backed them with force –
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... (as, eg, Eisenhower later backed Brown v Board of Education by sending federal troops to desegregate Southern schools).

But Marshall knew Pres. Jackson didn't support Indian rights. So Marshall didn't even try to pretend Worcester was enforceable:
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Trump's statement that he might sign an executive order requiring the census to include a citizenship question no matter what the Supreme Court says puts Roberts in the same position. If SCOTUS orders Trump not to include it, and Trump does anyway -- what happens then?
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Can Roberts assume Congress will defend the rule of law by successfully impeaching Trump? Nah -- and Roberts also knows that even if the House impeached, for him to preside over that impeachment trial in the Senate (as the Constitution requires) would be a bad look.
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Could Roberts decree that the illegally-conducted census is invalid and has no effect? No -- because (a) the Constitution requires the Census be conducted every ten years, and (b) failing to redistrict probably would HELP Trump's party.
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So here are the Roberts' choices:
1. Issue an order POTUS refuses to obey, knowing there's no way he can enforce it. The polite fiction that SCOTUS's decisions are enforceable... evaporates. Greatest Constitutional crisis in U.S. history. Effectively, Trump becomes a dictator.
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Or:
2. Allow Trump to offer a new, facially valid excuse for including the citizenship Q, call it good enough, and let him add it to the census to preserve the polite fiction that the Court matters.
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I think Roberts will choose #2, then seek to re-assert the Court's relevance (and revenge) in other ways, eg, by confirming all the House's subpoenas -- which, if Trump stonewalls, becomes the House's problem (and a "political Q" SCOTUS can stay away from).
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Trump may be a stumblebum interested only in preserving his own ego-authority. But his threat to add the citizenship question by executive order, while absolutely illegal, will be understood by Roberts as an existential threat to the Court's role in our constitutional scheme.
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And like John Marshall, he's more likely to roll over to preserve the appearance of normality than he is to brook the destruction of the American Experiment.

I can't even say he'd be wrong to play it that way. Ultimately, excising Trump is Congress's/voters' job, not his.

/end

And like John Marshall, he's more likely to roll over to preserve the appearance of normality than he is to invite the destruction of the American Experiment.

I can't even say he'd be wrong to play it that way. Ultimately, excising Trump is Congress's/voters' job, not his.

/end