The judicial branch has taken a ballpeen hammer to the administration* over the past couple of weeks, as it has periodically ever since El Caudillo del Mar-a-Lago came to Washington and started a fight over his travel ban. (We'll come back to that in a moment.) A couple of days ago, a federal judge in Philadelphia struck down the administration*'s regulation that would allow a "religious liberty" exemption from the Affordable Care Act's requirement that companies provide free birth control. The Philadelphia decision extended over the whole country a previous decision in a California court that applied only to California and 12 other states and the District of Columbia.

Then, on Tuesday, a federal judge in the Southern District of New York whaled on Secretary of Commerce Wilbur Ross and Ross's attempt to add a "citizenship" question to the 2020 census. From the Washington Post:

In his ruling, Furman blasted Commerce Secretary Wilbur Ross for “egregious” violations of the Administrative Procedure Act, including ignoring a statute that requires him to collect data through administrative records instead of through direct inquiries on a survey such as the census.

Furman called Ross’s decision to add the question “arbitrary and capricious,” adding that Ross had “failed to consider several important aspects of the problem; alternately ignored, cherry-picked, or badly misconstrued the evidence in the record before him; acted irrationally both in light of that evidence and his own stated decisional criteria; and failed to justify significant departures from past policies and practices — a veritable smorgasbord of classic, clear-cut APA violations.”

Ross also failed to follow other laws, including a statute requiring that he notify Congress of the subjects planned for any census at least three years in advance, Furman wrote, adding that the plaintiffs had proved they would be harmed by the question.

"A veritable smorgasbord of classic, clear-cut...violations." Lovely phrase, that, and one that can be applied to so many of the administration*'s actions over the past two years.

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These two decisions have set all the bats careening around the belfries as regards the judiciary and the Department of Justice. On Fox News, contributor Gregg Jarrett proposed breaking up the FBI. And the Washington Examiner's Quin Hillyer, drawing in part on the work of noted legal scholar Jefferson Beauregard Sessions III, proposed restricting the power of federal district courts to make their decisions applicable to the entire country. David French, writing in the National Review, the country's longest-running journal of white supremacy, also chimed in with horror. And the general principle came up often as William Barr faced the Senate Judiciary for the first of two days of testimony.

I gave up taking confirmation hearings seriously when I watched grifters like Ryan Zinke and fools like Betsy DeVos go sailing into the Cabinet simply because the Republicans had the votes in the Senate to put them there. (The Gorsuch hearings and the Kavanaugh puppet-show didn't recommend themselves to me as having been more than rigged wheels, either.) So watching William Barr's testimony on his behalf was rather like watching the same movie for the 93rd time.

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Republican senators threw softballs. Democratic senators went head-hunting, and Barr sought refuge in that unique form of Beltway weaselspeak that sounds important but is only portentous—Polonius with an honorarium and a fellowship at Heritage. There is no doubt in my mind that Barr was chosen by this administration* to protect this administration*, and that any pretense to the contrary was vain and foolish. Yet, everyone had to go through the motions anyway, so there we are.

If there was an intriguing strand to the questioning, it came on those occasions when Barr was questioned not about our current political dilemmas but, rather, on his work in the Department of Justice back in the 1980s and 1990s. Barr was George H. W. Bush's last Attorney General. It was the superheated beginning of the "war" on drugs, and Barr was central to creating that administration's draconian policies for drug enforcement and incarceration. Those policies now are the exact policies that the new push for criminal-justice reform is trying to, well, reform. (After leaving the White House the first time, Barr took a job with then-Virginia Governor George Allen in the latter's attempt to abolish parole in that state.)

Barr with George H.W. Bush Dirck Halstead Getty Images

Senator Kamala Harris took that particular bit in her teeth.



HARRIS: The war on drugs was a failure that should have focused on public health.

BARR: But the job of the DOJ is enforcement.

HARRIS: But I remind you what you said earlier that the AG roles are enforcement, legal advice AND policy.



Bill Clark Getty Images

Senator Cory Booker went at Barr even harder than Harris did.

BOOKER: I just want to tell you that I was a young black guy in the 1990s, I was a 20-something year told, and experienced a dramatically different justice system and the treatment that I received...Do you think, just yes or no, that this system of mass incarceration has disproportionately benefited African American communities?

Later, Barr said that he believed the "overall system" was working and that black and white defendants were treated equally within it and, demonstrating the kind of discipline we like to see in our public servants, nobody fell off their chairs or threw food.

Anyway, Barr was slipping and sliding all over the place, ducking a question on voter-suppression by saying low turnout represented citizens "not being that engaged in the public affairs of the country," but occasionally letting the mask slip a bit, such as when he talked about how a court had overturned the Muslim Ban in the first days of this administration*.



BARR: A judge with a lifetime appointment sitting somewhere in the country who doesn't have the access to the information, has no political accountability, can stop a national security measure?... That's really troublesome to me.



That's a tell. Barr is trying to sell the original fig-leaf that the ban was a response to a national-security threat, one that turned out to be as evanescent as the one the administration* is pitching to us as occurring along the border with Mexico. He can walk through the Trumpian fantasyland as easily as anyone else, and that's why he's going to be the attorney general, because the other people willing to live there have the votes.

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Charles P. Pierce Charles P Pierce is the author of four books, most recently Idiot America, and has been a working journalist since 1976.

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