Case No. 20-366 | S.D.N.Y.
November 30, 2020
Preview by Emma Eisendrath, Member
Members of the U.S. House of Representatives are apportioned based on population counts conducted every ten years. This case is about whether apportionment calculations may exclude undocumented immigrants. On July 21, 2020, President Trump issued a memorandum ordering the Secretary of Commerce to exclude undocumented immigrants counted in the 2020 U.S. Census from the final reported population count. See Excluding Illegal Aliens From the Apportionment Base Following the 2020 Census, 85 Fed. Reg. 44,679, 44,680 (July 23, 2020). Two sets of plaintiffs, NGOs and government entities, sued for declaratory and injunctive relief.
On September 10, 2020, the U.S. District Court for the Southern District of New York found that plaintiffs in the consolidated case had standing to sue and that President Trump’s order exceeded his authority. New York v. Trump, 20-CV-5770 (RCW) (PWH) (JMF), 2020 WL 5422959, at *2 (S.D.N.Y. Sept. 10, 2020). The court granted the plaintiffs’ motion for declaratory judgment and held that the memorandum was a “violation of Congress’s delegation of its constitutional responsibility to count the whole number of persons in each State and to apportion members of the House of Representatives among the States according to their respective numbers.” Id. at *36.
The Supreme Court will address two issues: first, whether the plaintiffs have standing to bring this suit, and second, whether President Trump’s memorandum violates the census provision of the Constitution. See U.S. Const. amend. XIV, § 2. The appellants argue that the appellees lack standing because any remedy provided by the Court would come after completion of the census, and thus not redress any current alleged harms. See Reply Brief for the Appellants at 1–4, Trump v. New York, No. 20-366 (U.S. filed Oct. 13, 2020). They also argue that any “apportionment-based” injuries are “too speculative” because without a final census count, “it is . . . unknown whether the size of the illegal-alien population excluded in any given State will have a relative impact sufficient to decrease the appellees’ congressional representation.” Brief for the Appellants at 18–19, Trump v. New York, No. 20-366 (U.S. filed Oct. 30, 2020).
The appellees argue that the alleged injuries are twofold: that undocumented immigrants will not be counted towards apportionment and that the policy will discourage immigrant participation in the census. See Motion to Affirm for Government Appellees at 12–20, Trump v. New York, No. 20-366 (U.S. filed Oct. 7, 2020). They argue that injunctive and declaratory relief would remedy future harms by preventing the federal government from unconstitutionally discounting undocumented immigrants in the apportionment count. See id. at 12–14. They also argue that even though the Court will hear this case after the Census, the issue fits the mootness exception of “disputes capable of repetition, yet evading review” because if this case is dismissed on mootness grounds, undocumented immigrants may be unconstitutionally excluded from the next census. Id. at 15–16 (quoting FEC v. Wisconsin Right to Life, Inc., 551 U.S. 449, 462 (2007))..
On the constitutionality of the new apportionment scheme, the appellees argue that the plain language of the Fourteenth Amendment requires counting all individuals residing in a state, regardless of their immigration status, for apportionment purposes. See Motion to Dismiss or Affirm at 13–15, Trump v. New York, No. 20-366 (U.S. filed Oct. 7, 2020). They argue that the drafters of the Amendment meant for the language “whole number of persons” to cover anyone residing in a state. Id. at 17–18 (quoting U.S. Const. amend. XIV, § 2).
The appellants provide an alternative Constitutional argument, stating that the Secretary of Commerce has broad delegated authority over the Census. Brief for the Appellants at 22. They state that the Court has previously found that Article I, § 2 gives Congress broad delegation authority and that Congress appropriately uses that authority when it delegates control to the Secretary. Id. The appellants rely on a previous case, Franklin v. Massachusetts, which held that the president has authority to direct the Secretary’s census-taking and reporting procedures. 505 U.S. 788, 797–99 (1992); see Brief for the Appellants at 23–24. They argue that the President appropriately used his memorandum to oversee census procedures.