Supreme Court Rules Census Suit Not Ripe for Judicial Review

The U.S. Supreme Court recently dismissed a lawsuit challenging the Trump Administration’s policy of excluding undocumented immigrants from the apportionment base when conducting the U.S. census. By a vote of 6-3, the majority concluded that the legal challenge in Trump v. New York, 592 U.S. ____ (2020), was not ripe for judicial review.

Legal Foundations of the US Census

TheU.S.Constitutionprovides:“Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State.”The Constitution furthermandates 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 requiredby13 U.S.C. § 141(a)toreport “[t]he tabulation of total population by States” to the President.Under2 U.S.C. § 2a(a), thePresidentisthenrequired 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

In July 2020, President Donald Trump issued a memorandum to the Secretary of Commerce respecting the apportionment following the 2020 census. The memorandum announced a policy of excluding “from the apportionment base aliens who are not in a lawful immigration status.”

To facilitate implementation “to the maximum extent feasible and consistent with the discretion delegated to the executive branch,” the President ordered the Secretary, in preparing his §141(b) report, “to provide information per- mitting the President, to the extent practicable, to exercise the President’s discretion to carry out the policy.” The President directed the Secretary to include such information in addition to a tabulation of population according to the criteria promulgated by the Census Bureau for counting each State’s residents.

This case arises from one of several challenges to the memorandum brought by various States, local governments, organizations, and individuals. A three-judge District Court held that the plaintiffs had standing to proceed in federal court because the memorandum was chilling aliens and their families from responding to the census, thereby degrading the quality of census data used to allocate federal funds and forcing some plaintiffs to divert resources to combat the chilling effect. The District Court concluded that the memorandum violates §141(b) by ordering the Secretary to produce two sets of numbers—a valid tabulation derived from the census, and an invalid tabulation excluding aliens based on administrative records outside the census. The District Court further ruled that the exclusion of aliens on the basis of legal status would contravene the requirement in §2a(a) that the President state the “whole number of persons in each State” for purposes of apportionment. The District Court declared the memorandum unlawful and enjoined the Secretary from including the information needed to implement the memorandum in his §141(b) report to the President. The Government appealed.

Supreme Court’s Decision

In a per curium decision, the Supreme Court determined that it lacked jurisdiction to decide the dispute and remanded the case back to district court with instructions to dismiss the case. According to the Court, thecase is “riddled with contingencies and speculation that impede judicial review.”

“The President, to be sure, has made clear his desire to exclude aliens without lawful status from the apportionment base. But the President qualified his directive by providing that the Secretary should gather information ‘to the extent practicable’ and that aliens should be excluded ‘to the extent feasible,’” the majority wrote. “Any prediction how the Executive Branch might eventually implement this general statement of policy is ‘no more than conjecture’ at this time.”

The majority further emphasized that the Trump Administration “cannot feasibly implement the memorandum” by excluding all illegal immigrants, noting that “the policy may not prove feasible to implement in any manner whatsoever, let alone in a manner substantially likely to harm any of the plaintiffs here.” It added: “The count here is complete; the present dispute involves the apportionment process, which remains at a preliminary stage. The Government’s eventual action will reflect both legal and practical constraints, making any prediction about future injury just that—a prediction.”

Given that it was still too early for the Court to decide the dispute, the majority did not address the merits of the case. “At the end of the day, the standing and ripeness inquiries both lead to the conclusion that judicial resolution of this dispute is premature. Consistent with our determination that standing has not been shown and that the case is not ripe, we express no view on the merits of the constitutional and related statutory claims presented,” the Court wrote.

Dissent

Justice Stephen Breyer authored a dissenting opinion, which was joined by Justices Sonia Sotomayor and Elena Kagan. “The Government has announced a policy to exclude aliens without lawful status from the apportionment base for the decennial census. The Government does not deny that, if carried out, the policy will harm the plaintiffs. Nor does it deny that it will implement that policy imminently (to the extent it is able to do so),” Justice Breyer wrote. “Under a straightforward application of our precedents, the plaintiffs have standing to sue.”

The dissenters further maintained that the plaintiffs should also prevail on the merits. “The plain meaning of the governing statutes, decades of historical practice, and uniform interpretations from all three branches of Government demonstrate that aliens without lawful status cannot be excluded from the decennial census solely on account of that status. The Government’s effort to remove them from the apportionment base is unlawful, and I believe this Court should say so,” Justice Breyer wrote.