The executive order that President Donald Trump issued on Thursday was a face-saving attempt to repackage a political loss. Much more important, however, it reflects the administration's stepping back from the brink of a truly historic rejection of the principle that the courts decide the law under our constitutional scheme.
The administration for several days had suggested it was busy concocting a workaround to the Supreme Court's determination in late June that the rationale for placing a citizenship question in the 2020 census was pretextual and could not stand.
The Justice Department initially had the reflexive and professional response of accepting the court's decision in full. Then suddenly, set to action by a tweet from the president, it embarked on a weeklong effort to come up with some alternative rationale, a course of conduct that undercut its already weakened credibility with the two district courts that had assumed control of the question.
It is important to understand just what a radical course of action the administration was flirting with. The attorney general of the United States declared that he had been in regular contact with the president about the question, which the president was determined to see featured on the decennial survey.
"I agree with him that the Supreme Court decision was wrong," Attorney General William Barr said.
Thankfully we are not going to find out for certain, but what is the possible import of insisting that the Supreme Court got it "wrong" here? Barr's affirming of Trump's repeated assertion that the court had erred, while promising to produce some executive remedy for the error, portended a response that was not faithful to the court's mandate. Certainly, such a course would not have been out of character for the headstrong and constitutionally uninformed president.
There have been in U.S. history, on very few occasions, suggestions from the executive branch that it needn't fully enforce Supreme Court decisions. Abraham Lincoln famously took the position in debate with Stephen Douglas that the Republican Party might not be bound going forward by the principle announced in the infamous Dred Scott decision. Likewise, Attorney General Edwin Meese entertained at least intellectually the legitimacy of a cribbed response to Supreme Court holdings.
But as Lincoln made clear, he was not advocating the idea that the Supreme Court's holding could be disregarded in the particular case. On the contrary, he made plain his acceptance of the specific holding that Scott remained a slave.
Likewise, even segregation-forever politicians including George Wallace reluctantly acquiesced to the court's authority to resolve individual cases, which is the indisputable core of the judicial power.
Here, Barr and Trump's proclamation suggested a far more anti-constitutional gesture of essentially ignoring the court's resolution of the actual case. Such a response would have been tantamount to challenging the bedrock principle of Marbury v. Madison that "it is emphatically the province and duty of the judicial department to say what the law is."
That would indeed have put the country unequivocally at the razor edge of a constitutional crisis. If the executive branch disclaims the courts' authority to resolve disputes, we would be in wholly uncharted territory outside the ability of the Constitution to resolve.
So it is an enormous relief that the administration, presumably Barr in particular, concluded such an approach was a bridge too far, even as it meant telling the president that he had to give up on his crusade to inject the citizenship question into the census and take a high-profile loss (which of course he attempted to repackage as a victory).
At the news conference, Barr was at pains to dismiss as "rank speculation" the idea that they were seeking essentially to ignore the Supreme Court's resolution of the case. Informed speculation would be more accurate. The president's express derogation of the court's decision combined with the unsuccessful flailing toward a bogus new solution left little room for confidence that Trump would respect this most critical, but ultimately fragile, constitutional norm.
In the event, the administration stepped away from adding to Trump’s dubious constitutional legacy the distinction of being the first president to set his shoulder against the Supreme Court’s canonical role, unquestioned for more than 200 years. Be thankful that the country was able to escape that particular constitutional train wreck.
Harry Litman
Harry Litman, a Washington Post contributing columnist, is a former U.S. attorney and deputy assistant attorney general. He teaches constitutional law and national security law at the University of California at Los Angeles School of Law and the University of California at San Diego Department of Political Science.