Supreme Court to Hear Appeal Over US Census

The U.S. Supreme Court has agreed to hear oral arguments in Trump v. New York on November 30, 2020. The case involves the legality of the Trump Administration’s plan to exclude people who are in the country illegally from the state-by-state breakdown of the population for use when allocating seats in the U.S. House of Representatives.

Legal Background

The U.S. Constitution provides: “Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State.” The Constitution further mandates that an “actual Enumeration” be conducted “every . . . ten Years, in such Manner as [Congress] shall by Law direct.”

Congress has delegated the task of conducting the census to the Secretary of Commerce, who is required by 13 U.S.C. § 141(a) toreport “[t]he tabulation of total population by States” to the President. Under 2 U.S.C. § 2a(a), the President is then required to 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.”

Facts of the Case

The figures used to determine the apportionment of Congress, which include the “total population” and the “whole number of persons” in each State, have traditionally included every person residing in the United States at the time of the census, regardless of whether they are a citizen or non-citizen and whether they are living here with legal status or without.

On July 21, 2020, President Donald Trump announced a new policy deviating from this practice. In a Presidential Memorandum, the President declared that, “[f]or the purpose of the reapportionment of Representatives following the 2020 census it is the policy of the United States to exclude from the apportionment base aliens who are not in a lawful immigration status.” To implement this new policy, the President ordered the Secretary of Commerce (Secretary) to provide him two sets of numbers for each State: first, the total population as determined in the 2020 census and, second, the total population as determined in the 2020 census minus the number of “aliens who are not in a lawful immigration status.”

Two groups of Plaintiffs filed suit challenging the decision to exclude illegal aliens from the apportionment base for Congress on the ground that it violates the Constitution, as well as federal statutes governing the census and apportionment. The first is a coalition of 22 States and the District of Columbia, 15 cities and counties, and the United States Conference of Mayors. The second is a coalition of non-governmental organizations.

The district court granted summary judgment to the plaintiffs. It foundthe Presidential Memorandum was an unlawful exercise of the authority granted to the President by statute. It enjoined the Commerce Department and Census Bureau (but not the President himself) from including in the Secretary’s report to the President any information concerning the number of aliens in each State “who are not in a lawful immigration status under the Immigration and Nationality Act.”

“The Presidential Memorandum violates the statutes governing the census and apportionment in two clear respects. First, pursuant to the virtually automatic scheme established by these interlocking statutes, the Secretary is mandated to report a single set of numbers — ‘[t]he tabulation of total population by States’ under the decennial census — to the President, and the President, in turn, is required to use the same set of numbers in connection with apportionment. By directing the Secretary to provide two sets of numbers, one derived from the decennial census and one not, and announcing that it is the policy of the United States to use the latter in connection with apportionment, the Presidential Memorandum deviates from, and thus violates, the statutory scheme,” the district court held. “Second, the Presidential Memorandum violates the statute governing apportionment because, so long as they reside in the United States, illegal aliens qualify as ‘persons in’ a ‘State’ as Congress used those words.”

Issues Before the Court

On October 16, the Supreme Court agreed to expedite the Trump Administration’s appeal. The justices, which may by then include Supreme Court nominee Amy Coney Barrett, will consider the following questions:

(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.