SCOTUS Dismisses Census Case — For Now

'Judicial resolution ... is premature'

By Andrew R. Arthur on December 18, 2020

The Supreme Court issued an opinion today dismissing "the census case" — Trump v. New York — concluding that a decision in the matter at this point would be premature. That means that the matter is on hold — for now.

I wrote about the oral arguments in that matter in a December 2 post captioned "SCOTUS Hears Census Case: But didn't offer many clues on whether any, some, or all illegal aliens can be excluded from the count". There was plainly a reason why the argument in that matter was so befuddled, as Friday's decision shows.

By way of background, under clause 2 of the 14th Amendment, "Representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state." To do that apportionment, Article I, section 2, clause 3 of the U.S. Constitution calls for an "actual Enumeration" of those "persons" every 10 years — the "census".

The secretary of Commerce is required to complete that census under 13 U.S.C. § 141, and provide a report to the president tabulating the "total population by States".

On July 23, 2020, a presidential memorandum was published in the Federal Register, directed to the Commerce secretary. Section 2 stated:

For 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 under the Immigration and Nationality Act [INA] ..., to the maximum extent feasible and consistent with the discretion delegated to the executive branch.

Accordingly, the memorandum directed the secretary in preparing the report under section 141(b) to "take all appropriate action, consistent with the Constitution and other applicable law, to provide information permitting the President, to the extent practicable, to exercise the President's discretion to carry out" that policy. There are a lot of caveats in that statement.

Thereafter, two different groups filed separate complaints in the U.S. District Court for the Southern District of New York, challenging the memorandum on various constitutional and statutory grounds. The cases were consolidated, and on September 10, 2020, a three-judge panel of the district court issued an opinion granting the plaintiffs partial summary judgment.

The district court held the memorandum violated federal law, and entered declaratory and injunctive relief. In particular, it prevented the secretary from including the requested information in his census report to the president.

The district court held the exclusion of illegal aliens would unconstitutionally alter the apportionment of representatives and have a chilling effect on participation in the census. That latter conclusion was central to the district court's finding that the plaintiffs had standing to challenge the memorandum to begin with.

DOJ appealed to the Supreme Court, and arguments were heard on November 30. Questions were all over the map, as I noted in the earlier post.

Friday's opinion (per curiam, that is for the whole Court and not bearing the signature of any specific justice, although Justices Breyer, Sotomayor, and Kagan dissented) is simple to summarize: The chilling effect has been overcome by events (the census is over), and no one has been injured by the scheme in the memorandum yet — because the secretary has not reported to the president and the president has not acted.

For the same reasons, the case is not yet ripe for adjudication. Injury and ripeness are essential elements of the "justiciability" of a claim.

Or, as the Court stated: "At present, this case is riddled with contingencies and speculation that impede judicial review. ... Any prediction how the Executive Branch might eventually implement this general statement of policy is 'no more than conjecture' at this time." Given that, it is too early (and inappropriate) for the court to rule on the statutory and constitutional issues raised.

Simply put, the secretary may not be able to figure out how many illegal aliens there are who were included in the census, let alone whether their numbers were large enough numbers to affect (in terms of funding or apportionment of representatives) any of the parties.

And there is no way to determine how the president will act on the information the secretary might provide. Significantly, the Court held with respect to these points: "Everyone agrees by now that the Government cannot feasibly implement the memorandum by excluding the estimated 10.5 million aliens without lawful status."

Of course, at some point the secretary and president will act, which (probably) will return the case to the courts. It is questionable whether the DOJ under President Joe Biden will defend those suits, although there could be states that would have standing at that point to support the president's actions (because they will benefit from apportionment and/or the funding differential).

But, in the interim, the district court's decision is vacated, and the matter has been remanded with instructions from the Supreme Court to dismiss.