Trump v. New York

Issues

Does New York have standing to challenge President Trump’s memorandum excluding undocumented immigrants from the apportionment base of the 2020 U.S. decennial census? If so, is it lawful for the President to exclude undocumented immigrants unlawfully residing in the United States from the congressional apportionment base in the 2020 U.S. decennial census?

Oral argument:

November 30, 2020

Court below:

United States District Court for the Southern District of New York

This case asks the Supreme Court to decide whether the president may exclude undocumented immigrants when apportioning congressional seats by population. On July 21, 2020, President Donald Trump issued a memorandum declaring that the United States would exclude undocumented immigrants from the congressional apportionment base. Trump argues that New York lacks standing to bring this case since 2020 census questionnaires are no longer being collected and it cannot point to how much federal funding or congressional representation certain states stand to lose. Trump further contends that even if New York has standing, Trump has discretion not to count undocumented immigrants for apportionment purposes. New York asserts that it has standing because it has demonstrated that the memorandum will deter undocumented immigrants from participating in the 2020 decennial census. Moreover, New York asserts that federal statutes require the government to make funding decisions based on the total population count and that certain states could lose congressional representation if the memorandum is implemented. Finally, New York argues that the Census Act, Reapportionment Act, and the Constitution prevent the president from exercising discretion to exclude undocumented immigrants from the census. The outcome of this case has implications for the apportionment of representatives from states with large undocumented populations and the participation of undocumented immigrants in the decennial census.

Questions as Framed for the Court by the Parties

(1) Whether a group of states and local governments have standing under Article III of the Constitution to challenge a July 21, 2020, memorandum by President Donald Trump instructing the secretary of commerce to include in his report on the 2020 census information enabling the president to exclude noncitizens from the base population number for purposes of apportioning seats in the House of Representatives; and (2) whether the memorandum is a permissible exercise of the president’s discretion under the provisions of law governing congressional apportionment.

Facts

The U.S. Constitution mandates that an “actual enumeration” of the population be conducted every ten years, so that the resulting number can be used to apportion congressional seats. New York v. Trump at 7–8. The Secretary of Commerce, empowered by the Census Act, must tabulate the total population every ten years and transmit it to the President. Id. Thereafter, the President must present to Congress “the whole number of persons in each State” and the number of Representatives that each state is entitled to. Id. at 8. The Secretary of Commerce has historically conducted the decennial census by counting every person residing in the United States at the time of the census, regardless of their citizenship or immigration status. Id. at 7–8.

On July 21, 2020, President Donald Trump issued a memorandum (the “Memorandum”) declaring that the United States would exclude undocumented immigrants “who are not in a lawful immigration status” from the 2020 United States Census. Id. at 15. In the Memorandum, the President declared that including undocumented immigrants in the apportionment of congressional representation denigrates the nation’s principles of representative democracy and creates an incentive for states to encourage violations of federal law. Id. at 15–16. The President directed the Secretary of Commerce to include two specific figures in his report to the President: (1) the total population, including undocumented immigrants, and (2) the total population, excluding the number of undocumented immigrants. Id. at 3–4.

On July 24, 2020, a coalition of state and local governments and a group of non-governmental organizations (collectively “New York”) sued President Trump and the Department of Commerce (collectively the “Trump Administration”), seeking a preliminary injunction barring the Trump Administration from implementing the Memorandum and a declaration that it is unlawful. Id. at 4–5. In its initial complaints, Respondent New York argued that the Memorandum is unconstitutional, because it (1) violates the Constitution’s Enumeration Clause of the Fourteenth Amendment, the Due Process Clause of the Fifth Amendment, and principles of state sovereignty enshrined in the Tenth Amendment. Id. at 17. New York argued that the Memorandum unlawfully deviates from the statutory requirement that the President include all United States residents, regardless of their immigration status, in the apportionment base, and that it will cause widespread confusion among undocumented immigrants, which could deter participation in the census. Id. at 29, 65–66. In response, Petitioner Trump filed a cross motion to dismiss New York’s claims, arguing that the court lacked jurisdiction to decide its claims, and that New York lacked standing because it failed to show the requisite irreparable harm. Id. at 19. Trump further declared that the exclusion of undocumented immigrants from the apportionment base was a legitimate exercise of executive discretion. Id.

On September 10, the Southern District of New York (the “District Court”) granted summary judgment in favor of New York, finding that the Memorandum violates 2 U.S.C. § 2a and 13 U.S.C. § 141 by requiring congressional seats to be apportioned based on something other than the “results of the census alone,” since the 2020 census did not itself gather information about immigration status. Id. at 66. According to the District Court, the Trump Administration cannot supplant Congress’s historical interpretation of what is “more consonant with the principles of representative democracy” with that of its own, and therefore lacks “discretion to exclude undocumented immigrants on the basis of their legal status.” Id. at 76–77. The District Court thereby declared the Memorandum unlawful and enjoined the Trump Administration from implementing it. Id. at 85–86.

The Trump Administration appealed the decision to the Supreme Court, and on September 30, 2020, the Court granted certiorari.

Analysis

CENSUS PARTICIPATION INJURY

Petitioner Trump claims that New York has failed to establish standing under Article III of the Constitution. Brief for Petitioner, Donald J. Trump, et al. at 15. Specifically, Trump argues that New York’s alleged injury — that the Memorandum will have a “chilling effect” on census participation — is speculative and hypothetical. Id at 15–18. As proof, Trump contends that New York was unable to identify any examples of undocumented immigrants who were deterred from responding to the census because of Trump’s Memorandum. Id. at 17–18. Further, since the Census Bureau was no longer collecting responses to the census at the time the Supreme Court granted certiorari in this case, Trump argues that there “can be no further ‘chilling effect’ on census participation.” Id. at 15. Therefore, Trump claims that the claim for relief is moot because there is no longer an “actual controversy” to be litigated. Id. Additionally, since any chilling effect ceased to exist after the Census Bureau ceased collecting questionnaires, Trump contends that any injunction or declaration that the Memorandum is unlawful would not cure the alleged injury. Id. at 15–18.

Respondent New York counters that it has established standing to bring this case pursuant to Article III. Brief for Respondent, New York et al. at 13. New York argues that the “chilling effect” injury is not speculative because it has offered evidence proving the deterrent effect of the Memorandum. Id. at 19. Specifically, New York contends that the record features “extensive and unrebutted expert and fact witness submissions” showing that the Memorandum caused confusion among undocumented immigrants as to whether they should participate in the census, “engender[ing] fear and distrust” among immigrants. Id. at 19. New York further contends that the injunction and declaration ordered by the District Court provided immediate relief because census data collection was still ongoing at the time. Id. at 20. New York claims that Trump announced the Memorandum three months before the 2020 census ended and decided to end the census count early. Id. at 21. Therefore, New York argues that the Trump Administration manufactured mootness to evade Supreme Court review. Id. at 21–23. In the next census, New York asserts that a president could easily repeat this process and end the census count early so that the injury would again be rendered moot and thus unreviewable by a federal court. Id.

APPORTIONMENT-BASED INJURIES

Trump argues that New York has also failed to establish standing under Article III based on its alleged apportionment-based injuries. Brief for Petitioner at 18–19. Trump argues that New York’s claim that the Memorandum will deprive certain states of congressional representation is speculative. Id. at 19. Specifically, Trump contends that since it is difficult to determine how many undocumented immigrants can be excluded from the population count, the impact of such an exclusion on states’ congressional representation remains uncertain. Id. at 19. Trump also contends that New York’s claim that the Memorandum will cause certain states to be disproportionately deprived of federal funding is similarly speculative. Id. Trump argues that New York has failed to identify any statute conditioning funds on a specific census data set or requiring federal entities to distribute funds based on a delineated method of apportionment tabulation. Id. at 19–20.

New York asserts that its alleged apportionment-based injuries establish standing to maintain the lawsuit. Brief for Respondent at 13. New York claims there is a “substantial risk” that certain states will lose congressional representation because the Memorandum expressly aims to cause certain states to lose congressional representation and the Trump Administration has been actively collecting data on the number of undocumented immigrants in the country in order to implement the Memorandum. Id. at 13–14. New York argues that the Memorandum itself predicts that California, a party to this lawsuit, will lose at least two congressional seats if it is implemented. Id. at 14. New York also claims that certain states could lose federal funding, referencing several federal statutes that require federal entities to distribute funds based on the latest “decennial census.” Id. at 17. New York argues that the funding injury is only speculative because the entities responsible for distributing federal funds—which are under the supervision of the Trump Administration—have not assured states that federal funding will not rely on the contents of the decennial census. Id.

PRESIDENTIAL DISCRETION

Trump claims that nothing in the Constitution or Census Act prevents him from directing the Secretary of Commerce (“Secretary”) to include a data set excluding undocumented immigrants from the census population count. Brief for Petitioner at 22–23. Trump argues that the Secretary, under the direction of the President, has “virtually unfettered discretion” with regard to conducting the census. Id. at 22. Trump contends that the Census Act expressly authorizes the Secretary to calculate the apportionment base “in such form and content as he may determine.” Id. at 23. Trump maintains that under Franklin v. Massachusetts—a case in which the Supreme Court upheld the president’s inclusion of overseas service members in the census count—the President may direct the Secretary to make “policy judgments” when determining the population base for apportionment. Id. at 26, 28. Moreover, Trump maintains that under Franklin, the President has supervisory power to override the Secretary’s preferred approach to completing the census and has full authority to direct the Secretary to conduct the census differently. Id. at 26.

Trump further argues that neither the Constitution nor the Reapportionment Act require the President to include undocumented immigrants in the apportionment base. Brief for Respondent at 29. Rather, Trump contends that “persons in each State” in both the Reapportionment Act and the Constitution has historically referred to a state’s “inhabitants” and has not been interpreted to apply to “all persons physically in the country on census day.” Id. at 29–30. Trump argues that, according to Supreme Court precedent, a president is entitled to resolve the meaning of the term “inhabitant” consistent with “the text and history of the Constitution.” Id. at 33. Trump asserts that when the Constitution was adopted, there was no definitive definition of the term “inhabitant.” Id. at 35. However, Trump argues that a person who did not have the government’s permission to be in the country and who failed to establish an intent to reside in the country indefinitely did not qualify as an inhabitant. Id. at 34. Trump contends that given the historical ambiguity over whether undocumented immigrants would have been considered “inhabitants” at the time the Constitution was adopted, the President may resolve that ambiguity by excluding undocumented immigrants from each state’s apportionment of representatives. Id. at 39, 45.

New York counters that the Memorandum’s order to provide two different sets of numbers to the President violates the Constitution and the Census Act. Brief for Petitioner at 47. New York argues that in directing the Secretary to report two different data sets, the Memorandum violates the Census Act’s requirement that the Secretary report a single “tabulation of total population.” Id. New York further argues that the Memorandum impermissibly directs the Secretary to “modify” the census after it is completed by using a second data set to adjust the apportionment base. Id. at 47. New York claims that Franklin does not support Trump’s interpretation of the Constitution or Census Act as permitting changes to the census after the census is completed. Id. at 48. Specifically, New York asserts that in Franklin, the count of overseas services members “took place as part of the census itself” and resulted in a single set of numbers that was used to tabulate the total population, rather than a modification to the census after it was completed. Id. at 48.

New York further contends that both the Constitution and the Reapportionment Act mandate that the apportionment base include undocumented immigrants. Brief for Respondent at 25–26, 32. New York argues that at the time the Constitution was adopted, the term “inhabitant” had a well defined meaning and referred to a person’s “usual place of abode” without regard to that person’s legal status. Id. at 26–27. New York further asserts that since the framers of the Constitution explicitly limited apportionment by counting each slave as three-fifths of a person, their decision not to explicitly condition apportionment on a person’s legal status is evidence that they did not intend to exclude undocumented immigrants from the apportionment base. Id. at 27. New York also argues that Congress specifically intended to include undocumented immigrants in the census when it passed the Reapportionment Act. Id. at 35–36. Specifically, New York argues that Congress passed the Reapportionment Act despite congressional representatives and senators protesting that it would include undocumented immigrants in the apportionment base. Id. at 35–36. New York also argues that Congress’s rejection of an amendment to the Reapportionment Act that would have obtained statements from aliens about their legal status is further proof that it did not intend to exclude undocumented immigrants from the apportionment base. Id. at 36.

Discussion

EQUAL REPRESENTATION & REPRESENTATIVE DEMOCRACY

U.S. Representatives Morris Jackson “Mo” Brooks, Jr., Bradley Byrne, and Robert Aderholt (collectively “Brooks”), in support of Trump, contend that affirming the District Court’s decision will “require” the President to violate the constitutional principle of equal representation. See Brief of Amici Curiae of U.S. Reps. Morris Jackson “Mo” Brooks, Jr., Bradley Byrne, and Robert Aderholt, in Support of Petitioner at 11. Brooks asserts that since the population of undocumented immigrants is highly concentrated in a small number of states, including them in the apportionment base “skews the allocation of congressional seats dramatically,” thereby diluting the voting strength of lawful citizens in other states. Id. at 4–5, 9. Brooks thus argues that the President not only has the discretion to exclude undocumented immigrants from the apportionment base, but the obligation to do so to ensure that there is equal voting power among citizens. Id. at 4, 9, 13. The State of Alabama (“Alabama”), also in support of Trump, asserts that undocumented immigrants lack a “deeper and more lasting connection with a State,” which requires more than mere physical presence, and thus should not be included in the population count used to calculate congressional apportionment. See Brief of Amicus Curiae Alabama, in Support of Petitioner at 7, 10.

Four chapters of the League of Women Voters (“League of Women Voters”), in support of New York, counter that excluding undocumented immigrants from the apportionment base undermines representative democracy. See Brief of Amici Curiae League of Women Voters of the United States et al., in Support of Respondent at 5–6. Specifically, the League of Women Voters contends that since historically, “representation was meant to extend further than the right to vote,” undocumented immigrants should be included in congressional apportionment regardless of their eligibility to vote. Id. at 5. The League of Women Voters further argues that excluding undocumented immigrants from the apportionment base will create a “loss of faith in the democratic process,” since certain communities will suffer a loss of political power if congressional seats are lost, and thus will be discouraged from participating in the political process. Id. at 6. The NAACP Legal Defense & Educational Fund (“NAACP”), in support of New York, asserts that the Memorandum dilutes the political power of people of color, who have been historically undercounted in prior decennial censuses and excluded from representation through discriminatory practices. See Brief of Amicus Curiae NAACP Legal Defense & Educational Fund, Inc., in Support of Respondent at 15–16, 19–24.

EFFECTS ON CENSUS PARTICIPATION

Citizens United, Citizens United Foundation, and the Presidential Coalition, LLC (collectively “Citizens United”), in support of Trump, argue that New York’s pre-existing concern expressed in Department of Commerce v. New York—that posing a question on the questionnaire regarding citizenship status could decrease census participation by non-citizens who fear the government would use their answers for “law enforcement purposes” against them—is inapposite in the current case, because undocumented immigrants’ well-documented fear of “being prosecuted, convicted, jailed, or deported” cannot be equated to their concern about how congressional seats will be apportioned.” See Brief of Amicus Curiae of Citizens United, Citizens United Foundation, and The Presidential Coalition, LLC, in Support of Petitioner at 10–11. Citizens United asserts that undocumented immigrants are not likely to avoid participating in the decennial census because the census does not generate threats that are personal to the participants, such as removal or deportation. Id. The Eagle Forum Education and the Legal Defense Fund, also in support of Trump, argue that excluding undocumented immigrants from the congressional apportionment base would not stifle participation in the census by undocumented immigrants, and that the concern of the potential “undercount injury” is speculative and not well-documented. See Brief of Amicus Curiae of Eagle Forum Education & Legal Defense Fund, in Support of Petitioner at 8–9.

LatinoJustice PRLDEF (“Latino Justice”), in support of New York, counters that Trump’s decision to exclude undocumented immigrants from the congressional apportionment base will have a deleterious impact on undocumented immigrants’ census participation, by implanting “uncertainty and confusion among immigrants already wary of responding to the census.” See Brief of Amicus Curiae of LatinoJustice PRLDEF and Twelve, in Support of Respondent at 28–29. Latino Justice further contends that the Memorandum will not only impair the U.S. democratic process, but also deprive Latino communities and undocumented immigrant populations—who have made significant contributions to the United States—of critical funding and political representation. Id. Former Directors of the U.S. Census Bureau, Kenneth Prewitt, Vincent P. Barabba, and Robert M. Groves (collectively “Directors”), also in support of New York, further contend that abandoning the constitutional enumeration of all U.S. residents will significantly undermine the “public’s trust and cooperation” that the Census Bureau has worked to build for decades, and thereby damage the Census Bureau’s “ability to provide relevant, accurate, objective, and trusted information” which are required for essential government functions. See Brief of Amicus Curiae of Former Directors of the U.S. Census Bureau, in Support of Respondent at 14–15, 17.