SCOTUS Hears Census Case

But didn't offer many clues on whether any, some, or all illegal aliens can be excluded from the count

By Andrew R. Arthur on December 2, 2020


On Monday, the Supreme Court heard oral arguments in Trump v. New York, better known as the "census case". I will spare you the trouble of reading that 96-page transcript (106 pages with appendix), as there was not much actual elucidation therein on the substantive issues in the case.

Briefly, 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 effect that apportionment, Article I, section 2, clause 3 of the U.S. Constitution calls for an "actual Enumeration" every 10 years. That is the "census".

Pursuant to 13 U.S.C. § 141, the secretary of Commerce is required to complete that census, and under subsection (b) therein, 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 explained:

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.

The next day, two groups — a number of states, localities, and the U.S. Conference of Mayors, and a few non-profit organizations — 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.

Those 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. It held that 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 concluded that the exclusion of illegal aliens would — in contravention of the Constitution — 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 filed an appeal of that decision and a motion to expedite consideration with the Supreme Court on September 22. On September 30, the Court granted the motion to expedite, and on October 16, issued an order postponing consideration of the merits and setting the case for oral argument.

As the Supreme Court framed the case, there were two questions for its consideration:

1. Whether the relief entered [by the district court] satisfies the requirements of Article III of the Constitution.

2. Whether the Memorandum is a permissible exercise of the President's discretion under the provisions of law governing congressional apportionment.

The second question is self-explanatory. The first is a little more complicated, and relates to plaintiffs' standing to bring the case to begin with (which gave the district court jurisdiction pursuant to the federal judicial power in Article III of the Constitution over their complaints), as well as the relief the district court granted.

I previously explained the standards for standing in an (unrelated) post on Tuesday. Overly simplistically, to determine whether a party has standing, the court must make three determinations.

The first is whether the plaintiffs have suffered an "injury in fact" — that is "an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not 'conjectural' or 'hypothetical''. To be "particularized", that "injury must affect the plaintiff in a personal and individual way."

"Second, there must be a causal connection between the injury and the conduct complained of." Such injury must "be fairly traceable to the challenged action of the defendant, and not" result from "the independent action of some third party not before the court."

Third, that injury "must be 'likely,' as opposed to merely 'speculative,'" such "that the injury will be 'redressed by a favorable decision.'"

Again, standing was found based on the purported chilling effect that the Memorandum would have on individuals' participation in the census. That, in turn, assumed that there were a number of aliens who had not responded to the census at the time that the opinion was issued, that they would not be otherwise counted, and that their numbers would be sufficient to have an appreciable impact on apportionment, redistricting, and funding (the latter two are also determined to a degree based on census numbers).

DOJ argued, however, that there was "a fundamental mismatch" between the future relief that the district court granted to the plaintiffs (that is, preventing the secretary from sending the information requested in the Memorandum to the president) and what the department deemed the "speculative present injury", that is, the chilling effect on aliens' participation in the census.

Simply put, the department argued that "the district court's judgment will become moot before it ever goes into effect", because the count will be completed before the secretary's report is sent. It also asserted that the "chilling effect" was "too speculative" to be an Article III injury to begin with.

There was not a lot of discussion on either of the two questions, per se, during oral argument. Rather, the justices seemed to focus more on the secretary's ability to identify any appreciable number of illegal aliens and in particular, the number of illegal aliens he could identify who had participated in the census, and the timing of that determination.

Justices Breyer and Barrett did actually get into the issue of whether illegal aliens could be excluded from apportionment (Barrett began her questioning of DOJ's top appellate lawyer — Solicitor General (SG) Jeffrey Wall — by stating: "I'm going to let you talk about the merits for a minute here.").

And Justice Alito started asking New York State SG Barbara Underwood (for the government plaintiffs) about different categories of aliens who plainly could be excluded under the count — until he was cut off by the chief justice when he ran out of time.

It would appear that the Court would prefer to wait to see what the secretary comes up with before issuing a decision. Or decide that the case is not "ripe" for a decision (as Justice Kavanaugh appeared to suggest), and later consider it anew (or not, if few or no aliens are excluded, or Trump cannot act before President-elect presumptive Joe Biden takes office).

Ripeness is akin to, but not the same as, standing. Standing is a question of who can bring a case; ripeness is a question of when it can be brought.

Can some, many, or all illegal aliens be excluded from the final census count? I have my opinions, but the justices of the Supreme Court (the only opinion that matters) were not offering many clues on what they think.