Amicus With Dahlia Lithwick | Episode Summary

Episode: Taking a Wrecking Ball to Our Constitution
Date: November 10, 2018
Host: Dahlia Lithwick
Notable Guests: Neal Katyal (former Acting Solicitor General), Dale Ho (Director, ACLU Voting Rights Project)

Episode Overview

In this episode, Dahlia Lithwick navigates a tumultuous week for the rule of law in America. The show sharply critiques the appointment of Matthew Whitaker as Acting Attorney General after Jeff Sessions’ forced resignation—raising serious constitutional concerns—and then pivots to a “deep dive” discussion about the addition of a citizenship question to the 2020 census, exploring its legal and societal ramifications.

Segment 1: The "Fake" Attorney General and Constitutional Crisis

With Neal Katyal
[Timestamps 00:05–16:54]

Main Points

• Jeff Sessions’ Resignation and Whitaker’s Appointment:
  The episode opens with bewilderment at President Trump’s installation of Matthew Whitaker, a known Mueller probe critic, as Acting Attorney General, bypassing Senate confirmation.

• The Legal Debate: Vacancies Act vs. Appointments Clause:
  Before Katyal and George Conway’s New York Times op-ed, debate centered on whether Whitaker’s appointment fell under the Vacancies Reform Act or DOJ succession policies.

• The Constitutional Argument:
  Katyal stresses the issue isn't just technical—it’s fundamentally unconstitutional for an unconfirmed "principal officer" to wield the full force of the Justice Department.

  “This is a guy who is purporting to have the entire law enforcement power of the entire country, and yet he's never been confirmed for such a position… I’m old enough to remember when attorneys general used to have to be confirmed.”
  — Neal Katyal (05:08)

• The ‘Fake Confirmation’ Rebuttal:
  Whitaker’s prior confirmation as a U.S. Attorney in Iowa (2004) does not count, Katyal argues, drawing a bright line between past, unrelated jobs and leading the DOJ.

  “You can't, like, cut and paste some old confirmation from a decade before... I mean, it's three strikes and you're out.”
  — Neal Katyal (05:24)

• Significance of the Appointments Clause:
  The framers required Senate confirmation for principal officers explicitly to prevent presidents from appointing loyalists to critical posts unchecked.

• Why Mueller Didn’t Need Confirmation:
  A counterpoint addressed: Special Counsels aren’t principal officers, nor have they ever been confirmed by the Senate, unlike the Attorney General.

  “The irony of this Trump position is it boomerangs on him.”— Neal Katyal (09:54)

• Remedies and Paths Forward:

  • Public outcry (“the rise of the public”)
  • Congressional power of the purse—House Democrats could refuse to fund Whitaker’s DOJ.
  • Legal challenges by those affected by the DOJ and possibly by Senators.

  “This is going to be a complete and total mess. And it could have been avoided, simply avoided.”
  — Neal Katyal (12:51)

• Urgency of the Issue:

  • Whitaker could act now to undermine the Mueller probe, possibly unseen by Congress or the public until much later.
  • Emphasized as tantamount to “firing” Mueller in functional effect.

  “The time is now. I don’t think you can wait because literally at this very moment, Whitaker could be turning over Mueller's files to Trump and we wouldn't necessarily know about it."
  — Neal Katyal (14:12)

Memorable Exchange

• Lithwick: “What you're saying is, this is the functional equivalent or could be the functional equivalent of firing [Mueller]…” (13:44)
• Katyal: “The time is now... There's a lot of mischief that can happen right now.” (14:12)

Segment 2: The Census, Voting Rights, and Political Power

With Dale Ho
[Timestamps 16:58–57:27]

Voting in America Post-2018 Midterms

• A ‘Messy’ State of Voting:
  Dale Ho describes the unprecedented amount of last-minute election litigation, citing restrictive voter ID laws, administrative failures, and deliberate suppression.

  “There was more last minute litigation about election procedures…than I can remember since maybe the 2012 election. I sort of had this naive hope—very naive—that most of these disputes would get resolved well in advance.”
  — Dale Ho (19:23)

• Election Crisis Management:
  Civil rights organizations collaborate on 'election protection' but often must escalate rapidly to litigation as unresolved issues arise.

  “There's this coalition...that participate[s] in an election protection program... We try to resolve these issues without suing, by calling election administrators or getting folks on the ground…”
  — Dale Ho (21:41)

• Partisan Election Administration and the Georgia Debacle:
  Brian Kemp's oversight of his own gubernatorial race is flagged as "not a best practice," reinforcing the need for nonpartisan election management.

  “We really ought to start trying to push states to move to a nonpartisan or independent professionalized election administration system.”
  — Dale Ho (23:52)

Positive Developments

• Voter Enfranchisement Wins:
  Ballot initiatives passed in several states:

  • Amendment 4 in Florida—restores voting rights to 1.4 million people with past felony convictions
  • Independent redistricting in Michigan
  • Broader access reforms in Maryland, Nevada

  “It is perhaps the single greatest act of enfranchisement we've seen since the 26th Amendment...”
  — Dale Ho (25:19)

The 2020 Census Citizenship Question

Constitutional and Policy Stakes

• Why the Census Matters:
  • It’s mandated by the Constitution for apportioning representation and distributing nearly $900 billion in federal funding.
  • All “persons” are counted, not just citizens.
• Historical Background:
  • The citizenship question has not appeared on the form sent to every household since 1950.

Wilbur Ross’ Decision and Pretext

• Ross Lied to Congress:
  Dale Ho details how Commerce Sec. Wilbur Ross manipulated the process, lying about DOJ's role and White House involvement.

  “The story that Wilbur Ross told to Congress is false. He did not do this in response to a Department of justice letter. He did consult with the White House and was motivated by political considerations...We found in discovery. I mean, it's wild.”
  — Dale Ho (54:10, circling back to earlier at 00:26; 32:44)

• The DOJ ‘Voting Rights Act’ Justification Exposed:

  • DOJ has never required citizenship data from the census to enforce the Voting Rights Act.
  • Existing data from the American Community Survey has always sufficed.
  • The administration’s rationale is, in Ho’s words, “laughable…bananas.”

• Protocol Violations and Ramifications:

  • The question was not subjected to the decade-long testing process normally required for census changes.
  • Ross dismissed warnings from the Census Bureau about undercounting and refused alternate, less harmful proposals.

• Discovery Revelations:

  • Internal documents and depositions showed direct pressure from Ross and the administration, confirming the cover-up.
  • Evidence exposed clear intent to suppress immigrant response rates, affecting political representation and resources.

  “The Department of Justice says they need the most accurate citizenship data possible... We found emails... the Census Bureau responds... says, guess what? We've figured this out... at a lower cost without putting a citizenship question on the census. DOJ refused to meet... Sessions personally directed [them] not to meet… I don’t know if you can get more of a smoking gun than that.”
  — Dale Ho (53:12)

Legal Challenges

• Court Cases and Consolidation:
  Multiple lawsuits (New York, California, Maryland) challenge the question as violating the Administrative Procedure Act and as unconstitutional discrimination.

• Obstacles in Discovery:
  Supreme Court stopped Secretary Ross’s deposition, sparking debate over whether courts can examine evidence beyond the official administrative record.

• Comparisons to the "Travel Ban" Case:
  Ho notes a familiar judicial reluctance to peer behind administrative pretexts, but says this time, the paper trail is public and damning.

• Impact and Urgency:
  A June 2019 deadline looms for printing the census forms, with the case likely heading quickly from trial to appeals.

• Climate of Fear:
  The climate among noncitizen and mixed-status households is one of acute fear, made worse in the Trump era, compounding the potential for suppressed responses.

  “That story is so much worse right now when you have an administration that’s picking people up in sensitive places that used to treat as safe spaces... Fear is way up... focus groups... confirm it.”
  — Dale Ho (56:07)

Notable Quotes & Memorable Moments

• "Taking a wrecking ball to our Constitution."
  — Neal Katyal (12:57), crystallizing the episode’s urgent theme.

• "Amazon will send a drone to you with your sneakers within an hour. It shouldn’t be this hard to vote."
  — Dahlia Lithwick & Dale Ho (22:58)

Important Timestamps

• 00:05–13:44: Neal Katyal on the constitutional crisis around Whitaker’s appointment
• 16:58–27:31: Dale Ho on the messy state of American voting and recent bright spots
• 27:31–46:19: Census basics, history, and the citizenship question’s origins
• 46:19–54:50: Legal fight, Supreme Court’s intervention, and discovery revelations
• 55:10–57:16: Deadlines, fear among immigrants, and broader implications

Final Thoughts

This episode combines sharp legal analysis with a sense of urgent alarm at the erosion of constitutional norms, making a persuasive, plain-language case for vigilance and civic action. Lithwick and her guests balance procedural detail with vivid, accessible explanations—serving concerned citizens, legal nerds, and newcomers alike. The stakes, as emphasized repeatedly, are nothing less than who wields power in America, now and into the 2020s.