by Jesse Merriam

The Judicial Resistance has struck again. As I have explained here and here, the historic 2016 election revealed how our federal courts have harnessed their power to stifle any change on the cardinal issue of the day and the signal issue defining the division between the American Left and Right: illegal immigration.

The Judicial Resistance made its first strike two years ago, invalidating the so-called “travel ban” on multiple occasions, forcing President Trump to narrow the ban to a near-nullity. It struck again in blocking President Trump’s efforts to withdraw federal funding from states that refuse to enforce federal immigration law. And it struck yet again, just last month, when a district court issued a nationwide injunction mandating that the Trump Administration must permit the Central American caravaners to stay in the United States for as long as it takes to process their asylum claims.

Now, in a 277-page opinion issued Tuesday, Judge Jesse M. Furman of the U.S. District Court in Manhattan held that the Trump administration’s decision to place a citizenship question on the 2020 census was illegal. Judge Furman rested his opinion on two principal reasons. One, Judge Furman claimed that the administration’s decision violated the Census Act by failing to report the change to Congress. Two, he deemed the administration’s decision to be “arbitrary and capricious” in failing to consider the extent to which this census change would lead to an underreporting of persons in immigrant households and a resulting financial and political cost for areas with significant immigration. Because the failure to consider this impact was “arbitrary and capricious,” Judge Furman concluded it violated the Administrative Procedures Act, the federal law governing the procedural requirements that administrative actions must follow.

Judge Furman’s decision is important, both for the American Left and Right, and for this reason it is almost certain to reach the Supreme Court. For the Left, the census question is important, because as William Frey at Brookings writes, the addition of the citizenship question might lead to census underreporting, thus depriving urban residents, ethnic minorities, and high-immigrant states of federal funding and political representation. According to Frey, the state most likely to be harmed from this census question would be California and the state most likely to benefit would be West Virginia.

For the American Right, the census question is instrumental in determining just how many illegal immigrants are in the country. This is a critical question, because the mainstream media continues to claim that there are nearly 11 million such persons, despite a recent exhaustive MIT-Yale study finding that the number is likely more than twice that amount. Much of the controversy over The Wall turns on determining how big of a problem illegal immigration actually is—and that requires determining precisely how many illegal immigrants are in the country. Judge Furman’s decision is a strike against answering that critical question.

In waging this attack, Judge Furman’s decision bears three indelible marks of the Judicial Resistance. Like the other cases, the census decision arose from the collusion of civil-rights organizations (such as the ACLU) and powerful liberal states (the lead plaintiff in this case is the State of New York). This is a testament to how the nation’s leading civil rights organizations and liberal judicial activists no longer operate to resist the state; they now operate in tandem with the state.

And like many of the other Judicial Resistance cases, Judge Furman’s census decision used traditionally conservative principles of legal interpretation to reach the desired political result. For example, the travel-ban decisions invoked a strict separation of powers to limit President Trump’s discretion over our borders. Similarly, the sanctuary-city decisions invoked federalism principles and the 10th Amendment to limit the administration’s power over state and local obligations to enforce federal immigration law. And Judge Furman’s decision used principles designed to reign in the administrative state to prevent the Trump administration from using the census to answer a pressing demographic question.

This should not fool anyone to believe that liberal judges actually believe in these principles or will eventually use them to curb the next Democratic president. Judge Furman’s decision, for example, refused to resolve New York State’s equal-protection claim under the Fifth Amendment’s Due Process Clause, because Judge Furman claimed that, at this point, there is not sufficient evidence to reveal a racial animus underlying the administration’s decision. On its face, this might seem like an exercise in judicial restraint. But it is, in fact, a careful legal maneuver by a skilled legal technician. Indeed, by framing the decision this way, Judge Furman was able to discuss how racist the administration is (Kris Kobach’s and Steve Bannon’s roles in the census question are discussed throughout the opinion) without opening up Judge Furman’s decision to a reversal on that ground by an appellate court.

Finally, like many of the other judges leading the Judicial Resistance, Judge Furman is a President Obama appointee, and a well-connected one, firmly entrenched in the progressive elite (his mother is Gail Furman, a wealthy Democratic party activist and donor; his father is Jay Furman, a New York City real-estate mogul; his brother is Jason Furman, Obama’s chief economic adviser in the 2008 campaign and Obama’s Council of Economic Advisers chair; and his wife is a former Columbia law professor and current head of the Heschel School).

Judge Furman’s decision might be reversed, but the impact of this ruling is permanent, as it represents yet another step in a disconcerting direction. Our elites are increasingly more concerned about those seeking to make a new life in California than those who are losing their way of life in West Virginia. Whatever one thinks about the census decision, this is not a trend any of us should be celebrating.

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