On December 18, 2020, the U.S. Supreme Court decided Trump v. New York, No. 20–366, holding that a challenge to the President’s announced policy of excluding from census apportionment aliens who are not in lawful immigration status does not present a justiciable controversy under Article III of the Constitution because it is speculative whether or how the policy will be implemented by the Secretary of Commerce.
The Constitution requires the federal government to conduct a census every 10 years. Congress is responsible for directing the manner of taking the census, but it has given certain functions to the Secretary of Commerce and the President. Specifically, the Secretary of Commerce is responsible for conducting the census “in such form and content as he may determine” and reporting the results to the President who, in turn, must transmit to Congress a statement showing the number of people in each state. In that statement, the President must apply a specified mathematic formula to the population counts to calculate the number of House seats apportioned to each state.
In July 2020, the President issued a memorandum in which he expressed his intent to exclude from the “apportionment base” (i.e., the total count of people in each state) all aliens who are “not in a lawful immigration status.” The memorandum directed the Secretary to provide the number of such aliens “in addition to a tabulation of population according to the criteria promulgated by the Census Bureau.”
New York, along with other plaintiffs, challenged the President’s directive on the ground that its exclusion of aliens violated 13 U.S.C. § 141(b), and that they would be injured by the directive because it could affect the allocation of House members and federal funds to states that had a disproportionate number of aliens specified in the directive. A three-judge district court panel declared the President’s directive unlawful and enjoined the Secretary from including the information needed to implement the directive in his report to the President. The court held that the plaintiffs had standing to challenge the directive because it was chilling aliens and their families from responding to the census, and therefore degrading the quality of census data used to allocate federal funds and forcing some plaintiffs to divert resources to offset the loss of federal funds.
The Supreme Court vacated the judgment and remanded with instructions to dismiss for lack of jurisdiction. The Court held that the challenge was not justiciable because it is not clear whether or how the Secretary of Commerce will implement the President’s directive, and therefore not certain whether or how any of the plaintiffs will suffer harm. The Court started by noting that the plaintiffs conceded that any “chilling” effect the memorandum might have on people responding to the census “dissipated upon the conclusion of the census response period”—i.e., because the census count has ended, the President’s policy will not chill anyone’s response to census takers. The Court then noted that the President’s directive required the Secretary to gather information “to the extent practicable” and that the Secretary should exclude aliens “to the extent feasible.” The Court stated that it was speculative what the Secretary might find “practicable” and how the Executive Branch would implement these general statements of policy. Moreover, the government acknowledged during oral argument that “any such changes must comply with the constitutional requirement of an ‘actual Enumeration’ of the persons in each State, as opposed to a conjectural estimate.” It is also unclear, the Court observed, whether the Secretary is even able to make an accurate tabulation of the number of aliens to be excluded under the directive in time to affect the final results of the census. The Court concluded that “the source of any injury to the plaintiffs is the action that the Secretary or President might take in the future to exclude unspecified individuals from the apportionment base—not the policy itself ‘in the abstract’” (original emphasis).
The opinion of the Court was delivered per curiam. Justice Breyer filed a dissenting opinion, which Justices Sotomayor and Kagan joined.