Incompetence Saves The Day

The “breaking news” yesterday on my iPhone and computer included a welcome report about the coming census. As most of you are undoubtedly aware, Wilbur Ross wanted to add a question about citizenship that was widely seen as an effort to depress Hispanic response.

Since funding for a wide number of programs is based upon population, an undercount would really hurt cities and states with high percentages of Hispanics. I’m sure its just coincidental that those places tend to vote Democratic.

In a 277-page opinion, the federal court ruled the question could not be asked.

David Schultz, a colleague who holds joint appointments at Hamline and the University of Minnesota law school, posted a brief summary of the decision on the Law and Courts listserv in which we both participate. (Yes, I am an incredibly nerdy person…)

The Court concluded that the explanations offered–the purported reasons for adding the question–were pretextual.

“First, the Court concludes that Secretary Ross ignored and violated a clear statutory duty to rely on administrative records (rather than direct inquiries) to the “maximum extent possible,” 13 U.S.C. § 6©, rendering his decision “not in accordance with law,” 5 U.S.C. § 706(2)(A). Second, even if that statute did not exist, Secretary Ross’s decision to add a citizenship question rather than collect citizenship data through more effective and less costly means was “not supported by the reasons [he] adduce[d],” Service, 522 U.S. at 374, making it “arbitrary and capricious” in violation of Section 706(A). Third, although a closer question, the Court finds that Secretary Ross failed to satisfy the statutory requirement that he report any plan to address the subject of citizenship to Congress at least three years before the decennial census, in violation of Title 13, United States Code, Section 141(f)(1). And fourth, the Court concludes that Secretary Ross’s decision was pretextual — that the rationale he provided for his decision was not his real rationale.”

An even more interesting part of the decision was the court’s review of the requirements of the Administrative Procedures Act. As David wrote,

What most struck me about the opinion were two major points.  First, and I argued this from day one of the Trump administration, their lack of skill and knowledge about the government (including the Constitution, the law, and process and procedure), would eventually lead to many administrative decisions being struck down in the courts.  This is an example of that. The court describes in detail how Ross just ignored the law and thought he was acting like the CEO of a company where he could do whatever he wanted. He ignored the law, reporting requirements, and also sought to cover up decisions.

The second major point was how DOJ attorneys effectively conceded much of the case to the plaintiffs…

Because Ross simply ignored applicable legal requirements, he left the DOJ attorneys with virtually no arguments to counter the charges of illegality. (Lawyers who’ve been put in this position by clients who are willful or stupid–or both– can relate.)  According to David, “The judge was simply devastating in detailing Ross’ willful disobedience of the law and the inability of the attorneys to defend his actions.”

This administration is doing incalculable harm. Every day is a new outrage, a new assault on the environment, public eduction, the rule of law…not to mention sanity and common decency. This case is a wonderful reminder that–as much damage as this band of looters and thugs is doing–it would be a lot worse if they weren’t reincarnations of the Keystone Kops.

As Paul Krugman put it in “Donald Trump and His Team of Morons,”

Then there’s the Trump effect. Normally working for the president of the United States is a career booster, something that looks good on your résumé. Trump’s presidency, however, is so chaotic, corrupt and potentially compromised by his foreign entanglements that anyone associated with him gets tainted — which is why after only two years he has already left a trail of broken men and wrecked reputations in his wake.

So who is willing to serve him at this point? Only those with no reputation to lose, generally because they’re pretty bad at what they do. There are, no doubt, conservatives smart and self-controlled enough to lie plausibly, or at least preserve some deniability, and defend Trump’s policies without making fools of themselves. But those people have gone into hiding.

I never thought I’d be so grateful for incompetence.


  1. “On August 30, 1977, relations between the Mayor William Hudnut III and the Indianapolis Police Department came to a head when 400-500 off duty police officers parked their patrol cars around the City-County building, turned on the lights and sirens, locked the door and tossed the police car keys into a trash can. The reasoning for the protest was over contract talks and the mayor stating he was going to end the practice of police officers being able to take their patrol cars home.
    This is the news report that aired on NBC Network News, from the then NBC affiliate of Indy, WRTV”

    The above quote has nothing apropos to offer to today’s blog, or any recent blog, or anything in general; it came to mind this morning as I watched local news. A State Police officer somehow managed to overturn his car on a slick street; not in a police chase or for any other obvious reason, it is being investigated. The woman IMPD officer who was accidentally shot in the back last week by an IMPD fellow officer has been released from the hospital. No charges filed or reprimands given regarding the shooting. I simply needed a mental escape from our own federal government and remembered that ear-blasting police protest form 1977 and wanted to share it to briefly lighten our overload of federal rule, sans Rule of Law.

    “Since funding for a wide number of programs is based upon population, an undercount would really hurt cities and states with high percentages of Hispanics. I’m sure its just coincidental that those places tend to vote Democratic.”

    All of the current federal level decisions by the Trump party appear to forget that, among those affected by their partisan decisions, are many Republicans. Sadly; those Republicans, in their baseless fear of neighbors who appear different, forget that THEY are caught in the Trump White Nationalist net in their efforts to aid only “their own kind”.

    What will those supporting Trump do when they receive their census form? Too many Americans do not understand the local importance of the widespread assistance (or cutting off assistance) is decided on this every-10-year-update of all Americans and other residents. There is also the further cut of all assistance at state levels; primarily in Republican majority states like Indiana.

    “This administration is doing incalculable harm. Every day is a new outrage, a new assault on the environment, public eduction, the rule of law…not to mention sanity and common decency.”

    Personally; I am asking myself if it is for selfish or national reasons I am so deeply concerned with the health and survival of Judge Ruth Bader Ginsberg, so much rests on her health and continued service on SCOTUS. With the certain acceptance of William Barr as Attorney General the scale of justice will tip alarmingly to the far right in a different area than with Sessions. Barr is willing to jail journalists! A scare tactic to shut down information currently uncovered by major news outlets? Each day of the Trump/McConnell rule of this nation endangers the passage of the upcoming census and the willingness of all to complete and return this vital document.

  2. I’m guessing the DOJ’s recent decision about online gambling will also be tossed despite the millions paid by the Adelson’s to get their way.

    They were able to get an embassy moved in Israel in exchange for their $55 million in donations to GOP PACs. Oh, and Miriam got a presidential award.

    As for Trump…he has perfectly capped off our Kakistocracy. As many posters on this site have noted, we are no longer a democracy or a representative republic.

    We do idolize our celebrities and since the free press is also in hiding, our nation is prone to attack by the highly incompetent.

    One of my favorite Plato quotes: “One of the penalties for refusing to participate in politics is that you end up being governed by your inferiors.”

    Which works hand in hand with having a government that serves the Oligarchs versus the people. The voters begin to disengage/lose interest since no matter how they vote, nothing changes.

    It’s almost a “chicken or egg” conundrum – which came first, voter disinterest or the Oligarchy?

  3. Gotta love this point:
    “the Court concludes that Secretary Ross’s decision was pretextual — that the rationale he provided for his decision was not his real rationale.”

    Regarding “Who is willing to serve him at this point” – does that include the man being interviewed by Congress to be the next Attorney General? Or does serving him only include the people that he alone can hire?

  4. There is incompetence in governing, and then there is planned chaos and the dismantling of government. We need to keep focused on what is really going on.

  5. I can’t get it out of my head that Stephen Miller is Trump’s designated Nazi, the Heinrich Himmler of our times. His published and media rhetoric has been nothing but racist hate since he was in high school. His open and blatant fealty to Donald Trump is almost embarrassing to watch.

    Wilbur Ross is nothing more than a corrupt bag man for Russian money laundering. It’s becoming clearer every day that the web of intrigue between the Trump crime syndicate and Russia is growing each day also. I think we’re going to see that Russia (Putin) has been cultivating Donald Trump for a couple decades. Now they have their perfect stooge in place to get the U. S. out of the way of Putin’s desire for European hegemony. Trump’s desire to leave NATO under the bullshit guise of Europe not paying their fair share is as shallow as it gets. What’s Putin’s #2 desire? For NATO to dissolve. What’s Putin’s #1 desire? That he can manipulate the United States’ policy.

    As Mueller gets closer to slipping the figurative noose around this president, watch for an increasingly deteriorating relationship between the United States and its traditional European allies. The Brexit vote yesterday felt like a major chunk of Western democracy just hit the ground and broke apart.

    And Donald Trump is willing to give Putin what he wants over the dumbest decision yet: His fucking wall. Well done, Trump voters and supporters. Your backwardness and selfish hatred may have cost the world humanity’s last best hope for self-governance and freedom from tyranny. You must be so proud of your choice.

  6. Although the incompetence of the current administration will save us from many of his illegal actions, it doesn’t save us from the majority of his harmful action. EPA is the best example of this that I can give you. There is a distinction between law and regulation and this administration is using that distinction to rape the environment.

    The only thing that could be worse would be the impeachment of 45 and the ascendance of a President Pence. He may be an ass, but he does know the system. That makes him even more dangerous than 45.

  7. Peggy,
    There is no guarantee that Pence will stick out his term as Vice President. When the Mueller report does come out I would think it highly likely that there will be chargers against Pence as well as Trump and his gang. Just like Agnew, Pence would resign. But Trump will have to be dragged out of the White House kicking and screaming. Some other Republican would get appointed Vice President and take over… just like Ford. And just like Ford pardon the lot.

  8. I guess I am counter to the feeling that that question shouldn’t be asked. Very simply put: If you are in this nation – and are not a citizen – you should be asked! It is a count of people(.) IF you have something to hide by not answering – do you really belong here? We have a lot of people in this nation that are foreign born and not citizens, RUSSIANS, CHINESE, IRISH, BRITS, SAUDI’S, AFRICANS, ASIANS… you name it – I can tell you for a fact there are a lot more people here than is known and they are NOT Mexican by majority either!
    For crying out loud. It only makes sense – and screw the fear factor. This is to allocate need. And to know who is and isn’t… is there something wrong with that? I am sure most will disagree, due to the present regime.., but don’t forget what people left out in that matter is that the second paragraph of the Declaration is the answer there! And that doesn’t mean do away with the government it means we have the right to throw down someone in our midst who claims to be a leader and is in reality a ‘DESPOT’… When Chei was made president for life the man said, “Sounds good, I might just try that…” and that is the least of his brags! As for the Declaration of Independence read it for yourself. This situation is generating an abyss and it is only getting DEEPER.

  9. President Potty Mouth strikes again. On a daily basis, Trump says something that everybody in the nation knows is wrong. And an ungodly high percentage of citizens feel it their duty to report the latest numbskull words or activities. But hardly anybody tells what should be said or done as opposed to what was said or done. This is a man who needs your help. He’s not bright enough to figure things out on his own. Tell him what’s what. Mike Pence is waiting in the wings.

  10. Incompetence may have saved the day in re the census issue but there are other areas where it is not saving but rather making the day worse, and not just for the day but as it serves as a precedent for future days (a kind of stare decisis). Trump and his minions have decided to (in effect) pass laws under the guise of rules and regulations, a lawmaking function reserved solely to the Congress per Madison in the Constitution, and when we put up with Trump’s continuous usurpations of powers reserved to the other two branches, we are only encouraging him to further usurp the powers of the other two branches of government en route to authoritarianism.

    It is long since past time for the Congress to assert its powers by passing laws that provide for preservation of its powers from executive overreach by Trump or any other president. For instance, the Constitution gives the president the title of commander in chief but it doesn’t give the power to declare war to the commander in chief. That power is reserved to the Congress, so I would recommend that the heads and minority heads of the appropriate congressional committees go with the president on talks with Kim, Putin, Erdogan and others as part of their portfolios. The Constitution also gives Congress the sole power of regulation of trade and commerce, yet due to a Cold War law delegating such power to the president in the case of national emergency, Trump is running around the world selectively applying tariffs to goods and services in international trade when no national emergency (other than the ones he is defining as such and creating domestically) are evident – all pursuant to another grab of power from the legislative branch which, incidentally, in this case could be ended via ridding ourselves of this Cold War legislation he is using as a pretense to exercise his merely delegated powers. What to do? Easy – end the delegation.

    I could go on and on, as my fellow contributors well know, but will end it here with the caveat to be mindful of executive overreach and the consequence of precedent in such process.

  11. wilber ross is just making sure,the illegals we send back, will find employment in one of those american jobs he sent to mexico, si?

  12. It’s clear that the Constitution assumes that we have a reasonably competent President. The first thing that our next government should do is to launch a Trump Incompetance Act that legislates Presidential behavior that is minimally competent and can be enforced. We, to the surprise of many of us, relied too much on tradition and norms and expectations rather than enforceable law to keep the office able to do it’s job.

    We should have learned by now. Those expectation need to have the force of law.

  13. Rev. Manuel Colunga-Hernandez @ 10:30 am: “I guess I am counter to the feeling that that question shouldn’t be asked. Very simply put: If you are in this nation – and are not a citizen – you should be asked! It is a count of people(.) IF you have something to hide by not answering – do you really belong here?”

    I would happen to agree with you. The Census back in 1930 asked for citizenship information. The problem is the Democrats and Republicans have never really wanted to address the issue. Let’s face the illegals could be and probably are exploited by American Employers.

    The Southern Strategy and all it entailed has resulted in a verbally militant base, that accepts no compromise. The Reactionary Right Wing media has doubled down on this extremism. The Evangelicals were added to this base and now represent a significant part of it.

    President Agent Orange, Pastor Pence and McConnell are terrified of their Base. President Agent Orange must constantly reassure them. Having activated this base they are no longer in control of it. Those politicians in the Republican Party who stray off course slightly to the middle are reminded in no uncertain terms they will face an electoral guillotine in the primary. Richard Lugar found this out.

  14. Theresa,

    “But Trump will have to be dragged out of the White House kicking and screaming. Some other Republican would get appointed Vice President and take over… just like Ford. And just like Ford pardon the lot.”

    In other words, we can’t win through Mueller. And we surely can’t win just by partisan politics or through the court system.

    We’re facing a fascist like movement. Neo-fascist movements are not static they’re dynamic. The movement Trump is fronting is also non-linear, not linear. It’s web-like and operates for the most part sub-surface and is both PHYSICAL and HIGHLY DANGEROUS.

    Anyone who leads must be able to plan and execute both on the highest intellectual and physical levels to succeed. No other combination has a chance of success at this stage of the game.

    Just listen to tapes from the Kennedy executive office before the Bay of Pigs fiasco. JFK says to advisors: “My problem is, I have the best intellectuals and the best military advisors, but I don’t have anyone who can excel, both intellectually and from a military standpoint, at the level I need.”[paraphrased, since I no longer have a copy of the Kennedy tapes. At one time they were available commercially].

    Anyone who doesn’t have both capabilities will never be able to LEAD EFFECTIVELY since he or she won’t be able to STAND HIS OR HER GROUND. And that’s why we are continually “Up Shit’s Creek without a paddle.”

    We need resumes to be submitted, PRONTO; Or I’m afraid we will, more than likely, incur a “domestic Bay of Pigs.”

  15. Not that it matters in the ling range s heme of things, but it was the Lafayette, Indiana Police Department in which one of their officers negligently fired husband weapon, striking the other officer. Not the Indianapolis Police Department.

  16. George; Oops, my bad! Thanks for pointing out my mistake; IMPD has enough real problems without being accused in error.

  17. Peggy@8:35am; Theresa@8:53am; and Marv@11:33am, I’m not completely, sure but IIRC, the constitution states that if the *President(so called) and the VP are both MIA, the next person in line to assume leadership will be The Speaker of The House of Representatives. Now, let’s see,….. just who might that be? And others have mentioned the needed qualifications of the new President, just who do we know who has been Very Good at herding cats in the last few years? Just a few random thoughts…

  18. And not for nothing, but She just uninvited Him from giving the SOTU to a joint house, until government re-opens! Unless He wants to send a written speech on the 29th, and we all want to listen to an hour or so of bloviating, don’t we? …… Crickets…?

  19. Sending speeches to the Congress to meet the constitutional requirement by written rather than oral speech was typical for presidents in the past, so Nancy is asking for nothing new. The tall Scotsman, Thomas Jefferson, had a high, squeaky voice, and given the acoustics of the time would probably not have been heard with an oral discourse, thus necessitating a written statement for delivery to the Congress.

    Nancy has done what Republicans in the House and Senate have utterly failed to do – she has reminded Trump that there are three equal and separate branches of government.

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