Can Trump Re-Tabulate The Census to Exclude Undocumented People From House Apportionment?
In the United States Supreme Court
|Argument||November 30, 2020|
|Decision||December 18, 2020|
|Opinion Below||Southern District of New York|
|Petitioner Brief||Trump, et al.|
|Respondent Brief||NY Immigrant Coalition, et al.|
|Respondent Brief||New York, et al.|
On December 18, 2020, the Supreme Court ruled in favor of President Trump, dismissing the case for lack of standing. The Court did not rule on the merits of the case.
Scroll down for our Decision Analysis.
November 18, 2020
Every ten years the federal government counts the number of people living in the country, state by state. That’s the census. The government uses the census results to determine how many seats each state gets in the House of Representatives.
The population count is used for a number of other purposes too. It is used for allocating federal grant money among and within states; for drawing state political districts; for state and local planning (i.e. allocating state resources and budgets), among other purposes.
Traditionally, the census count has included people regardless of immigration status. Thus, undocumented immigrants are counted. The Trump administration tried before to get information on citizenship through the official census count for 2020, allegedly to discourage counts of people without papers, but he lost that battle in the Supreme Court.
This case is about Trump’s work-around attempt to exclude undocumented immigrants from the count for House apportionment.
The Trump Memo
On July 21, 2020, President Trump issued an executive memo directing the Commerce Secretary to help him figure out how many undocumented immigrants were in each state. The President would then exclude that number from the count for House apportionment. The memo claims that federal law gives the President authority to edit the census number before tabulating House apportionment.
The Constitution does not specifically define which persons must be included in the apportionment base. Although the Constitution requires the “persons in each State, excluding Indians not taxed,” to be enumerated in the census, that requirement has never been understood to include in the apportionment base every individual physically present within a State’s boundaries at the time of the census. Instead, the term “persons in each State” has been interpreted to mean that only the “inhabitants” of each State should be included. . .
The discretion delegated to the executive branch to determine who qualifies as an “inhabitant” includes authority to exclude from the apportionment base aliens who are not in a lawful immigration status.
The memo states a policy “to exclude from the apportionment base aliens who are not in a lawful immigration status under the Immigration and Nationality Act, as amended (8 U.S.C. 1101 et seq.), to the maximum extent feasible and consistent with the discretion delegated to the executive branch.”
Excluding these illegal aliens from the apportionment base is more consonant with the principles of representative democracy underpinning our system of Government. Affording congressional representation, and therefore formal political influence, to States on account of the presence within their borders of aliens who have not followed the steps to secure a lawful immigration status under our laws undermines those principles. Many of these aliens entered the country illegally in the first place. Increasing congressional representation based on the presence of aliens who are not in a lawful immigration status would also create perverse incentives encouraging violations of Federal law.
A group of states, individuals, and immigrants rights groups sued Trump, arguing that the July 2020 memo violated the law. The plaintiffs argued that the Constitution and two different statutory schemes restrict the President from altering the census tabulation before determining House apportionment.
The federal district court in New York agreed with the plaintiffs. The court did not reach the Constitutional question, but it ruled that the law governing House apportionment requires the Commerce Secretary to submit the census count to the President and that the President must use the census count to determine House apportionment.
Standing: A Preliminary Question
The federal court also addressed whether the plaintiffs had “standing” to sue. Standing is a constitutional requirement to bring a lawsuit. The plaintiffs must show that they have a stake in the outcome of the case, in other words, that they stand to be harmed by the course the defendants are taking. The plaintiffs must show they will face a “concrete and particularized injury.”
In this case, the plaintiffs are states and individual Americans who live in immigrant communities. The plaintiffs also include NGOs which advocate on behalf of immigrants. The plaintiffs argue two sets of harm: 1) that the memo will cause them to suffer inadequate representation in the House; and 2) that the memo will cause underreporting on the census and harm them from receiving benefits that census figures are used to determine (i.e. federal, state and local funding, planning efforts). The NGO plaintiffs have had to use resources on encouraging census participation rather than on other efforts, like fighting COVID-19.
The federal district court ruled the plaintiffs had presented adequate evidence of their potential injuries traceable to the Trump memo to have standing.
The Supreme Court Appeal
The case falls among a rare set of cases heard by a three-judge district court panel which can be appealed directly to the Supreme Court. Thus Trump’s appeal went directly to the justices, and the Court accepted to hear arguments in November 2020.
The Supreme Court will analyze the laws to determine whether Trump has the authority to re-tabulate the census for purposes of House apportionment.
Regarding House apportionment, the Constitution says, “Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State.” U.S. Const. amend. XIV, § 2.
Then other federal laws dictate the details. Congress gave the responsibility of conducting the census to the Secretary of Commerce. Then the Secretary of Commerce must report “[t]he tabulation of total population by States” to the President. 13 U.S.C. § 141(a)-(b). Then the President must transmit to Congress “a statement showing the whole number of persons in each State . . . as ascertained under the . . . decennial census of the population, and the number of Representatives to which each State would be entitled” using a mathematical formula “known as the method of equal proportions.” 2 U.S.C. § 2a(a).
The question is: Can the President edit the census count once he receives it from the Commerce Secretary, or must the President simply conduct the analysis of how many seats each state gets based on the actual census count?
December 18, 2020
Supreme Court Throws Out Challenge to Trump Census-Related Memo, Calling Case Premature
On December 18, 2020, the Supreme Court ruled in favor of President Trump in Trump v. New York. In the case, plaintiffs challenged a memo Trump issued in July 2020, directing the Commerce Secretary to figure out how many illegal immigrants were counted in the census. With that number, the memo indicated, the administration would exclude illegal immigrants from the count to determine House Apportionment.
Plaintiffs in the case argued they would face injuries, including loss of proportional representation in the House, as well as losses of other benefits calculated based on census numbers. The plaintiffs argued the memo would lead to an inaccurate census count by deterring people in immigrant communities from responding.
Plaintiffs’ Injuries Are Speculative
The Supreme Court ruling dismissed the case, holding that the plaintiffs lacked Article III “standing.” The Constitution requires that plaintiffs suffer an injury that is concrete and particularized, as well as “imminent” rather than conjectural. The plaintiffs’ injuries, the Court ruled, are only conjectural at this point. Because the process outlined in the memo contains uncertainties about how the policy would play out, the Court said, the plaintiffs could not state for certain they would face injuries, or to what extent.
Here the record is silent on which (and how many) aliens have administrative records that would allow the Secretary to avoid impermissible estimation, and whether the Census Bureau can even match the records in its possession to census data in a timely manner. Uncertainty likewise pervades which (and how many) aliens the President will exclude from the census if the Secretary manages to gather and match suitable administrative records. We simply do not know whether and to what extent the President might direct the Secretary to “reform the census” to implement his general policy with respect to apportionment.
Slip Opinion at 5 (internal citations omitted). The apportionment process, the Court notes, remains at a preliminary stage, and it’s too early to determine to what extent the Government’s actions — which are limited by legal and practical constraints — will affect the plaintiffs.
The Case Is Not Ripe (It is Premature)
For much of the same rationale, the Court determined that the case is not ripe for review. According to the Constitution, a federal court must not determine a case before knowing the real consequences of the allegedly illegal actions. The Supreme Court dismissed for lack of ripeness as well.
The Unsigned Opinion
The Court issued the opinion unsigned, meaning it does list the author, and it does not state the votes of each justice. However, three justices dissented, so we can be sure those three did not support the opinion.
Dissent By The Liberal Wing
Justice Breyer wrote the dissenting opinion on behalf of himself, Justice Sotomayor and Justice Kagan. The opinion argues the plaintiffs have standing. It’s reasonably certain, Breyer argues, that the government will exclude illegal immigrants from the count for House apportionment to the extent that would harm the plaintiffs. There’s no point in waiting until the government takes the actions that it said it would.
Here, inquiry into the threatened injury is unusually straightforward. The harm is clear on the face of the policy. The title of the Presidential memorandum reads: “Excluding Illegal Aliens From the Apportionment Base Following the 2020 Census.” That memorandum announces “the policy of the United States [shall be] to exclude from the apportionment base aliens who are not in a lawful immigration status . . . to the maximum extent feasible and consistent with the discretion delegated to the executive branch.” Notwithstanding the “contingencies and speculation” that “riddl[e]” this case, the Government has not backed away from its stated aim to exclude aliens without lawful status from apportionment. . . .
The implementation of the memorandum will therefore bring about the very “representational and funding injuries” that the plaintiffs seek to avoid.
Slip Opinion, Breyer Dissent at 4 (internal citations omitted).
Breyer’s opinion would not only grant the plaintiffs standing, but it would rule in favor of the plaintiffs on the merits: that the Trump memo violates the law because it violates the statutory text of the modern apportionment scheme.