As of July 7, 2019, however, the federal courts still have the power to set aside unconstitutional executive orders. Ask the late President Harry Truman, who, as commander in chief, seized American steel mills in order to end a strike that was interfering with the Korean War effort. The Supreme Court told Truman he had no such power, and Truman meekly gave back the mills. Maybe the label “executive order” will magically intimidate Roberts. But I wouldn’t bet on it.
If I am right, Trump loses again. Except … Donald Trump doesn’t really recognize that courts have any authority over him. And here we come to the most dispiriting part of the entire census clown show: the magical emergence of a brand-new reason he might be able to cut courts out of the dispute.
On April 25, Josh Blackman, a professor at the South Texas College of Law, produced a stunning new interpretation of the Fourteenth Amendment. Section 2 states that, if a state denies “the right to vote” to any of its “male inhabitants … being citizens of the United States,” then the state’s “basis of representation [in the House of Representatives] … shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens . …”
Blackman suggested that § 2 requires a citizenship question on the census form itself, in order to enforce the reduction of representation.