Trump v. New York ( 2020 )

(Slip Opinion) Cite as: 592 U. S. ____ (2020) 1
Per Curiam
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order that
corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 20–366
_________________
DONALD J. TRUMP, PRESIDENT OF THE
UNITED STATES, ET AL., APPELLANTS
v. NEW YORK, ET AL.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF NEW YORK
[December 18, 2020]
PER CURIAM.
Every ten years, the Nation undertakes an “Enumera-
tion” of its population “in such Manner” as Congress “shall
by Law direct.” U. S. Const., Art. I, §2, cl. 3. This census
plays a critical role in apportioning Members of the House
of Representatives among the States, allocating federal
funds to the States, providing information for intrastate re-
districting, and supplying data for numerous initiatives
conducted by governmental entities, businesses, and aca-
demic researchers. Department of Commerce v. New York,
588 U. S. ___, ___ (2019) (slip op., at 2).
Congress has given both the Secretary of Commerce and
the President functions to perform in the enumeration and
apportionment process. The Secretary must “take a decen-
nial census of population . . . in such form and content as he
may determine,” 13 U. S. C. §141(a), and then must report
to the President “[t]he tabulation of total population by
States” under the census “as required for the apportion-
ment,” §141(b). The President in turn must transmit to
2 TRUMP v. NEW YORK
Per Curiam
Congress a “statement showing the whole number of per-
sons in each State, excluding Indians not taxed, as ascer-
tained” under the census. 46 Stat. 26, 2 U. S. C. §2a(a). In
that statement, the President must apply a mathematical
formula called the “method of equal proportions” to the pop-
ulation counts in order to calculate the number of House
seats for each State. Ibid.; see Department of Commerce v.
Montana, 503 U. S. 442, 451–452 (1992).
This past July, the President issued a memorandum to
the Secretary respecting the apportionment following the
2020 census. The memorandum announced a policy of ex-
cluding “from the apportionment base aliens who are not in
a lawful immigration status.” 85 Fed. Reg. 44680 (2020).
To facilitate implementation “to the maximum extent feasi-
ble and consistent with the discretion delegated to the ex-
ecutive 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.” Ibid. The
President directed the Secretary to include such infor-
mation in addition to a tabulation of population according
to the criteria promulgated by the Census Bureau for count-
ing each State’s residents. Ibid.; see 83 Fed. Reg. 5525(2018).
This case arises from one of several challenges to the
memorandum brought by various States, local govern-
ments, organizations, and individuals. A three-judge Dis-
trict Court held that the plaintiffs, appellees here, had
standing to proceed in federal court because the memoran-
dum 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. ___
F. Supp. 3d ___, ___–___, 2020 WL 5422959, *13–*15
(SDNY, Sept. 10, 2020) (per curiam). According to the Dis-
trict Court, the memorandum violates §141(b) by ordering
Cite as: 592 U. S. ____ (2020) 3
Per Curiam
the Secretary to produce two sets of numbers—a valid tab-
ulation derived from the census, and an invalid tabulation
excluding aliens based on administrative records outside
the census. Id., at ___, 2020 WL 5422959, *27. The District
Court also 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. Id., at ___, 2020
WL 5422959, *32. The District Court declared the memo-
randum unlawful and enjoined the Secretary from includ-
ing the information needed to implement the memorandum
in his §141(b) report to the President. Id., at ___, 2020 WL
5422959, *35. The Government appealed, and we post-
poned consideration of our jurisdiction. 592 U. S. ___
(2020).
A foundational principle of Article III is that “an actual
controversy must exist not only at the time the complaint is
filed, but through all stages of the litigation.” Already, LLC
v. Nike, Inc., 568 U. S. 85, 90–91 (2013) (internal quotation
marks omitted). As the plaintiffs concede, any chilling ef-
fect from the memorandum dissipated upon the conclusion
of the census response period. The plaintiffs now seek to
substitute an alternative theory of a “legally cognizable in-
jury” premised on the threatened impact of an unlawful ap-
portionment on congressional representation and federal
funding. Id., at 100. As the case comes to us, however, we
conclude that it does not—at this time—present a dispute
“appropriately resolved through the judicial process.” Su-
san B. Anthony List v. Driehaus, 573 U. S. 149, 157 (2014)
(internal quotation marks omitted).
Two related doctrines of justiciability—each originating
in the case-or-controversy requirement of Article III—
underlie this determination. See DaimlerChrysler Corp. v.
Cuno, 547 U. S. 332, 352 (2006). First, a plaintiff must
demonstrate standing, including “an injury that is concrete,
4 TRUMP v. NEW YORK
Per Curiam
particularized, and imminent rather than conjectural or hy-
pothetical.” Carney v. Adams, ante, at 6 (internal quotation
marks omitted). Second, the case must be “ripe”—not de-
pendent on “contingent future events that may not occur as
anticipated, or indeed may not occur at all.” Texas v. United
States, 523 U. S. 296, 300 (1998) (internal quotation marks
omitted).
At present, this case 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 Presi-
dent 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.” 85
Fed. Reg. 44680. Any prediction how the Executive Branch
might eventually implement this general statement of pol-
icy is “no more than conjecture” at this time. Los Angeles v.
Lyons, 461 U. S. 95, 108 (1983).
To begin with, the policy may not prove feasible to imple-
ment in any manner whatsoever, let alone in a manner sub-
stantially likely to harm any of the plaintiffs here. Pre-ap-
portionment litigation always “presents a moving target”
because the Secretary may make (and the President may
direct) changes to the census up until the President trans-
mits his statement to the House. Franklin v. Massachu-
setts, 505 U. S. 788, 797–798 (1992). And as the Govern-
ment recognizes, Tr. of Oral Arg. 39, 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. See Utah v. Evans, 536 U. S. 452,
475–476 (2002); see also 13 U. S. C. §195. Here the record
is silent on which (and how many) aliens have administra-
tive records that would allow the Secretary to avoid imper-
missible estimation, and whether the Census Bureau can
even match the records in its possession to census data in a
timely manner. See Reply Brief 4–5. Uncertainty likewise
Cite as: 592 U. S. ____ (2020) 5
Per Curiam
pervades which (and how many) aliens the President will
exclude from the census if the Secretary manages to gather
and match suitable administrative records. We simply do
not know whether and to what extent the President might
direct the Secretary to “reform the census” to implement his
general policy with respect to apportionment. Franklin,
505 U. S., at 798.
While the plaintiffs agree that the dispute will take a
more concrete shape once the Secretary delivers his report
under §141(b), Tr. of Oral Arg. 64, 75, they insist that the
record already establishes a “substantial risk” of reduced
representation and federal resources, Clapper v. Amnesty
Int’l USA, 568 U. S. 398, 414, n. 5 (2013). That conclusion,
however, involves a significant degree of guesswork. Un-
like other pre-apportionment challenges, the Secretary has
not altered census operations in a concrete manner that will
predictably change the count. See, e.g., Department of Com-
merce v. New York, 588 U. S., at ___ (slip op., at 10); Depart-
ment of Commerce v. United States House of Representa-
tives, 525 U. S. 316, 331–332 (1999). The count here is
complete; the present dispute involves the apportionment
process, which remains at a preliminary stage. The Gov-
ernment’s eventual action will reflect both legal and practi-
cal constraints, making any prediction about future injury
just that—a prediction.
Everyone agrees by now that the Government cannot fea-
sibly implement the memorandum by excluding the esti-
mated 10.5 million aliens without lawful status. Tr. of Oral
Arg. 20, 63–64. Yet the only evidence speaking to the pre-
dicted change in apportionment unrealistically assumes
that the President will exclude the entire undocumented
population. App. 344, Decl. of Christopher Warshaw ¶11.
Nothing in the record addresses the consequences of a par-
tial implementation of the memorandum, much less sup-
ports the dissent’s speculation that excluding aliens in ICE
detention will impact interstate apportionment. Post, at 5–
6 TRUMP v. NEW YORK
Per Curiam
6, 9 (opinion of BREYER, J.); see Reply Brief 6.
The impact on funding is no more certain. According to
the Government, federal funds are tied to data derived from
the census, but not necessarily to the apportionment counts
addressed by the memorandum. Brief for Appellants 19–
20. Under that view, changes to the Secretary’s §141(b) re-
port or to the President’s §2a(a) statement will not inexora-
bly have the direct effect on downstream access to funds or
other resources predicted by the dissent. Post, at 6–7. How
that question will be addressed by the Secretary and the
President is yet another fundamental uncertainty impeding
proper judicial consideration at this time.
The remedy crafted by the District Court underscores the
contingent nature of the plaintiffs’ injuries. Its injunction
prohibits the Secretary from informing the President in his
§141(b) report of the number of aliens without lawful sta-
tus. In addition to implicating the President’s authority un-
der the Opinions Clause, U. S. Const., Art. II, §2, cl. 1, the
injunction reveals that the source of any injury to the plain-
tiffs is the action that the Secretary or President might take
in the future to exclude unspecified individuals from the ap-
portionment base—not the policy itself “in the abstract,”
Summers v. Earth Island Institute, 555 U. S. 488, 494
(2009). Letting the Executive Branch’s decisionmaking pro-
cess run its course not only brings “more manageable pro-
portions” to the scope of the parties’ dispute, Lujan v. Na-
tional Wildlife Federation, 497 U. S. 871, 891 (1990), but
also “ensures that we act as judges, and do not engage in
policymaking properly left to elected representatives,” Hol-
lingsworth v. Perry, 570 U. S. 693, 700 (2013). And in the
meantime the plaintiffs suffer no concrete harm from the
challenged policy itself, which does not require them “to do
anything or to refrain from doing anything.” Ohio Forestry
Assn., Inc. v. Sierra Club, 523 U. S. 726, 733 (1998).
At the end of the day, the standing and ripeness inquiries
both lead to the conclusion that judicial resolution of this
Cite as: 592 U. S. ____ (2020) 7
Per Curiam
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. We hold only that
they are not suitable for adjudication at this time.
The judgment of the District Court is vacated, and the
case is remanded with instructions to dismiss for lack of ju-
risdiction.
It is so ordered.
Cite as: 592 U. S. ____ (2020) 1
BREYER, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 20–366
_________________
DONALD J. TRUMP, PRESIDENT OF THE
UNITED STATES, ET AL., APPELLANTS
v. NEW YORK, ET AL.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF NEW YORK
[December 18, 2020]
JUSTICE BREYER, with whom JUSTICE SOTOMAYOR and
JUSTICE KAGAN join, dissenting.
The Constitution specifies that the number of Represent-
atives afforded to each State is based on an apportionment
of the total population, with each State receiving its propor-
tional share. The Government has announced a policy to
exclude aliens without lawful status from the apportion-
ment base for the decennial census. The Government does
not deny that, if carried out, the policy will harm the plain-
tiffs. Nor does it deny that it will implement that policy
imminently (to the extent it is able to do so). Under a
straightforward application of our precedents, the plaintiffs
have standing to sue. The question is ripe for resolution.
And, in my view, the plaintiffs should also prevail on the
merits. The plain meaning of the governing statutes, dec-
ades 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 Gov-
ernment’s effort to remove them from the apportionment
base is unlawful, and I believe this Court should say so.
The Court disagrees. It argues that it is now uncertain
just how fully the Secretary will implement the Presiden-
tial memorandum. In my view, that uncertainty does not
2 TRUMP v. NEW YORK
BREYER, J., dissenting
warrant our waiting to decide the merits of the plaintiffs’
claim. It is true that challenges to apportionment have of-
ten come after the President has transmitted his tabulation
to the House. See Brief for United States 16 (deeming as
preferable “this Court’s normal approach: to decide such
cases post-apportionment” (citing Utah v. Evans, 536 U. S.
452, 458–459 (2002), Wisconsin v. City of New York, 517
U. S. 1, 10–11 (1996), and Franklin v. Massachusetts, 505
U. S. 788, 790–791 (1992))). The Government asked us to
take that approach here. See Tr. of Oral Arg. 7–8. But we
have also reached and resolved controversies concerning
the decennial census based on a substantial risk of an an-
ticipated apportionment harm. See Department of Com-
merce v. United States House of Representatives, 525 U. S.
316, 332 (1999) (holding that it is “not necessary for this
Court to wait until the census has been conducted to con-
sider” government conduct that may affect apportionment).
And that is what I believe the Court should do here. Wait-
ing to adjudicate plaintiffs’ claims until after the President
submits his tabulation to Congress, as the Court seems to
prefer, ante, at 4, risks needless and costly delays in appor-
tionment. Because there is a “substantial likelihood that
the [plaintiffs’] requested relief . . . .will redress the alleged
injury,” United States House of Representatives, 525 U. S.,
at 332, I would find that we can reach plaintiffs’ challenge
now, and affirm the lower court’s holding.
I
The Court reasons that “standing has not been shown”
because it is too soon to tell if the Government will act “in a
manner substantially likely to harm any of the plaintiffs
here.” Ante, at 4, 7. As I have said, I believe to the contrary.
Plaintiffs have alleged a justiciable controversy, and that
controversy is ripe for resolution.
Cite as: 592 U. S. ____ (2020) 3
BREYER, J., dissenting
A
Begin with the threatened injury. The plaintiffs allege
two forms of future injury: a loss of representation in the
apportionment count and decreased federal funding tied to
the census totals. For an injury to satisfy Article III, it
“must be concrete and particularized and actual or immi-
nent, not conjectural or hypothetical.” Susan B. Anthony
List v. Driehaus, 573 U. S. 149, 157 (2014) (quoting Lujan
v. Defenders of Wildlife, 504 U. S. 555, 560 (1992); internal
quotation marks omitted). We have long said that when
plaintiffs “demonstrate a realistic danger of sustaining a di-
rect injury as a result of [a policy’s] operation or enforce-
ment,” they need “ ‘not have to await the consummation of
threatened injury to obtain preventive relief. If the injury
is certainly impending, that is enough.’ ” Babbitt v. Farm
Workers, 442 U. S. 289, 298 (1979) (quoting Pennsylvania v.
West Virginia, 262 U. S. 553, 593 (1923)).
Here, inquiry into the threatened injury is unusually
straightforward. The harm is clear on the face of the policy.
The title of the Presidential memorandum reads: “Exclud-
ing Illegal Aliens From the Apportionment Base Following
the 2020 Census.” 85 Fed. Reg. 44679 (2020) (Presidential
memorandum). That memorandum announces “the policy
of the United States [shall be] to exclude from the appor-
tionment base aliens who are not in a lawful immigration
status . . . to the maximum extent feasible and consistent
with the discretion delegated to the executive branch.” Id.,
at 44680. Notwithstanding the “contingencies and specula-
tion” that “riddl[e]” this case, ante, at 4 (opinion of the
Court), the Government has not backed away from its
stated aim to exclude aliens without lawful status from ap-
portionment. See Brief for United States 14 (urging that
the Secretary “be allowed to implement the Memorandum,
at which point suit can be brought”); see also Virginia v.
American Booksellers Assn., Inc., 484 U. S. 383, 393 (1988)
(finding standing where “plaintiffs have alleged an actual
4 TRUMP v. NEW YORK
BREYER, J., dissenting
and well-founded fear that the law will be enforced” and the
Government “has not suggested that the newly enacted
[policy] will not be enforced”). The memorandum also an-
nounces the reason for this policy: to diminish the “political
influence” and “congressional representation” of States
“home to” unauthorized immigrants. 85 Fed. Reg. 44680.
It notes that “one State”—now known to be California, see
Brief for Appellees State of New York et al. 7—is “home to
more than 2.2 million illegal aliens,” and excluding such in-
dividuals from apportionment “could result in the allocation
of two or three [fewer] congressional seats than would oth-
erwise be allocated.” 85 Fed. Reg. 44680. Other conse-
quences will flow from this attempt to alter apportionment.
We have previously noted that “the States use the results
in drawing intrastate political districts,” and “[t]he Federal
Government [also] considers census data in dispensing
funds through federal programs to the States.” Wisconsin
v. City of New York, 517 U. S. 1, 5–6 (1996).
The implementation of the memorandum will therefore
bring about the very “representational and funding inju-
ries” that the plaintiffs seek to avoid. Brief for Appellees
State of New York et al. 10.
B
Given the clarity of the Presidential memorandum, it is
unsurprising the Government does not contest that plain-
tiffs have alleged a threatened injury. Rather, it contends
that both the alleged representational and funding injuries
remain “too speculative” to satisfy Article III’s ripeness re-
quirement prior to the President’s actual enumeration.
Brief for United States 19. That is because—although the
Secretary’s report to the President is due in just two
weeks—the Bureau’s plan to implement the memorandum
remains uncertain and “depends on various unknowable
contingencies about the data,” and until “later in December
or January, the Bureau cannot predict or even estimate the
Cite as: 592 U. S. ____ (2020) 5
BREYER, J., dissenting
results.” Reply Brief for United States 4. The Government
contends that given these uncertainties, “it is far from a
‘virtual certainty’ that any appellee will ‘lose a [House] seat’
when the Memorandum is implemented.” Id., at 5. It also
says it is “too speculative” that plaintiffs will be dispropor-
tionately deprived of federal funding, as it is not yet certain
that the tabulation the President submits to Congress for
apportionment purposes will also be used as the total pop-
ulation for federal statutes that apportion funds on the ba-
sis of States’ proportional population. Brief for United
States 19–20. At root, the Government contends that “ripe-
ness principles support deferring judicial review of the
Memorandum until it is implemented.” Id., at 21.
Whether viewed as a question of standing or ripeness, the
Government’s arguments are insufficient. We have said
that plaintiffs need not “demonstrate that it is literally cer-
tain that the harms they identify will come about” to estab-
lish standing. Clapper v. Amnesty Int’l USA, 568 U. S. 398,
414, n. 5 (2013). Rather, an “allegation of future injury may
suffice if the threatened injury is ‘certainly impending,’ or
there is a “ ‘ “substantial risk’ ” that the harm will occur.’ ”
Driehaus, 573 U. S., at 158 (quoting Clapper, 568 U. S., at
414, n. 5). Looking to the facts here, the memorandum pre-
sents the “substantial risk” that our precedents require.
The Government’s current plans suggest it will be able to
exclude a significant number of people under its policy. To
start, even a few weeks out, the Government still does not
disclaim its intent to carry out the policy to the full extent
it can do so. See Tr. of Oral Arg. 9–10 (stating that “we
don’t know what’s feasible, about excluding all illegal al-
iens,” but recognizing that “some subsets are going to be
much stronger cases for the exercise of [the President’s] dis-
cretion than other subsets”). Indeed, the Bureau is commit-
ted to excluding as many people as possible even if it must
act beyond the December 31 statutory deadline to do so. Id.,at 6–7. And there is a “substantial risk” that it will be able
6 TRUMP v. NEW YORK
BREYER, J., dissenting
to do so to the point that it causes significant harm. Both
here and in related litigation below, the Government has
said that as of early December, it was already feasible to
exclude aliens without lawful status housed in ICE deten-
tion centers on census day, a “category [that] is likely in the
tens of thousands, spread out over multiple States.” Reply
Brief for United States 6; see also Brief for Appellees
New York Immigration Coalition et al. 15 (citing a prior
Government estimate that doing so will exclude approxi-
mately “50,000 ICE detainees”). Beyond these detainees,
appellees note that the Government has also identified at
least several million more aliens without lawful status that
it can “individually identify” and seek to exclude from the
tabulation. Id., at 15–16. We have been told the Bureau is
“working very hard to try to report on” (and exclude from
the apportionment tabulation) a large number of aliens
without lawful status, including “almost 200,000 persons
who are subject to final orders of removal,” “700,000 DACA
recipients,” and about “3.2 million non-detained individuals
in removal proceedings.” Tr. of Oral Arg. 28–29. All told,
the Bureau already possesses the administrative records
necessary to exclude at least four to five million aliens. Id.,
at 29. Those figures are certainly large enough to affect ap-
portionment.
Of equal importance, plaintiffs argue that aside from ap-
portionment itself, the exclusion of aliens without lawful
status from the apportionment count will also negatively
affect federal funding that is based on per-State propor-
tional decennial population totals. Brief for Appellees New
York Immigration Coalition et al. 18–19; see also Depart-
ment of Commerce v. New York, 588 U. S. ___, ___ – ___
(2019) (slip op., at 9–10) (noting that even a small under-
count of noncitizen households can lead those States to “lose
out on federal funds that are distributed on the basis of
state population”). Indeed, a number of federal statutes re-
Cite as: 592 U. S. ____ (2020) 7
BREYER, J., dissenting
quire that funding be allocated based on the results “certi-
fied,” 16 U. S. C. §669c(c)(3), “stated,” 49 U. S. C.
§47114(d)(1)(B), or “reported,” 52 U. S. C. §20901(d)(4), by
the decennial census. These phrases seem always to have
been understood to refer to the apportionment tabulation
reported to the President by the Secretary of Commerce
(the report here at issue), because that is the only tabula-
tion that the law requires to be “certified” or “reported” as
part of the decennial census. See 16 U. S. C. §669c(c)(3); 52
U. S. C. §20901(d)(4). See generally Brief for Professor An-
drew Reamer, Ph. D. as Amicus Curiae 2–3. The Govern-
ment counters that appellees have not identified any reason
why the individuals unlawfully removed from the tabula-
tion could not be added back in for purposes of applying
funding statutes. Reply Brief for United States 7. But
there is no indication that the Secretary could or would do
any such thing—unless of course a court holds that the re-
moval was unlawful. And the possibility of adding back
those who have otherwise been unlawfully removed from
the count does not undercut a plaintiff ’s standing to pursue
a claim of unlawfulness in the first instance.
Moreover, the statute says that “the President shall
transmit to the Congress a statement showing the whole
number of persons in each State . . . as ascertained under
the . . . decennial census of the population.” 2 U. S. C.
§2a(a) (emphasis added). Statute after statute pegs its
funding to a State’s share of “the total . . . population of all
the States as determined by the last preceding decennial
census.” See, e.g., 7 U. S. C. §361c(c)(2) (allocating funding
by a State’s share of “the total rural [and farm] population
of all” States); §2663(b)(4) (same); 49 U. S. C.
§5305(d)(1)(A)(i) (for State share of “population of urban-
ized areas”); §5311(c)(3)(B)(iii) (for State share of “the pop-
ulation of all rural areas”); see also U. S. Census Bureau,
L. Blumerman & P. Vidal, Uses of Population and Income
Statistics in Federal Funds Distribution—With a Focus on
8 TRUMP v. NEW YORK
BREYER, J., dissenting
Census Bureau Data 18 (2009) (estimating that as of 2009
at least 24 federal programs automatically distributed at
least $10 billion in annual funding to States keyed directly
to the decennial census’s State population figures). Given
the connection between the decennial census and funding
allocation, a change of a few thousand people in a State’s
enumeration can affect its share of federal resources.
I do not agree with the Court that the lingering uncer-
tainty over the Government’s plans renders this litigation
unripe, nor that the apportionment process is at a “prelim-
inary stage.” Ante, at 5. For one thing, the Government
has spent over a year collecting the administrative records
that will be used to fulfill the Presidential memorandum.
See Exec. Order No. 13880, 84 Fed. Reg. 33823 (2019) (call-
ing for federal departments to share administrative records
so the Department of Commerce can “generate a more reli-
able count of the unauthorized alien population in the coun-
try . . . [and] an estimate of the aggregate number of aliens
unlawfully present in each State”). For another, the Gov-
ernment has told us in related litigation that further delays
in proceeding with apportionment beyond the statutory
deadline would harm “the ability to meet contingent redis-
tricting deadlines” in the States, because “ ‘delays would
mean deadlines that are established in state constitutions
or statutes will be impossible to meet.’ ” See Reply Brief in
Support of Application for Stay Pending Appeal in Ross v.
National Urban League, O.T. 2020, No. 20A62, p. 11. Act-
ing on that concern, we granted the Government’s stay
pending appeal so as to hasten the Government’s efforts
ahead of these deadlines. See Ross v. National Urban
League, 592 U. S. ___ (2020). Presumably, waiting to re-
solve this issue until after the President submits his tabu-
lation will cause further hardship by delaying redistricting
further. States will begin to consider the consequences of
reapportionment soon. See, e.g., Del. Code Ann., Tit. 29,
§805 (2020) (“After the official reporting of the 2020 federal
Cite as: 592 U. S. ____ (2020) 9
BREYER, J., dissenting
decennial census by the President to Congress . . . the Gen-
eral Assembly shall, not later than June 30, 2021, reappor-
tion and redistrict the State . . . for the general election of
2022”). It is of course possible that the Bureau will be una-
ble to find a significant number of matches between the mil-
lions of records it has and the census data it is producing in
time for the President to exclude them from his tabulation
submitted to Congress. But even if the Secretary were to
limit severely his compliance with the President’s memo-
randum—say, by choosing to “report” only those 50,000 al-
iens that are estimated to be in ICE detention centers and
omitting them from his census “tabulation”—that omission
alone presents a “substantial risk” of affecting the census
calculation for purposes of apportionment and funding.
That is the very kind of injury of which plaintiffs complain.
Taken together, these considerations demonstrate that now
is the appropriate time to resolve this case. Cf. Abbott La-
boratories v. Gardner, 387 U. S. 136, 149 (1967) (HARLAN,
J. for the Court) (explaining that the timing of judicial re-
view turns on “the fitness of the issues for judicial decision
and the hardship to the parties of withholding court consid-
eration”).
To repeat, the President’s stated goal is to reduce the
number of Representatives apportioned to the States that
are home to a disproportionate number of aliens without
lawful status. The Government has confirmed that it can
identify millions of these people through administrative
records. But if the Census Bureau fails to fulfill its man-
date to exclude aliens without lawful status and reduce the
number of Representatives to which certain States are en-
titled, it will be for reasons not in the record. Where, as
here, the Government acknowledges it is working to
achieve an allegedly illegal goal, this Court should not de-
cline to resolve the case simply because the Government
speculates that it might not fully succeed.
10 TRUMP v. NEW YORK
BREYER, J., dissenting
For these reasons, I believe that the plaintiffs have al-
leged a “substantial risk” that unlawfully subtracting al-
iens without lawful status from the tabulation of the total
population that the President submits to Congress will in-
flict both apportionment and appropriations injuries on
them. Those injuries are substantially likely to occur in the
reasonably near future. This case squarely presents a con-
crete dispute and we should resolve it now.
II
On the merits, I agree with the three lower courts that
have decided the issue, and I would hold the Government’s
policy unlawful. See New York v. Trump, ___ F. Supp. 3d.
___, ___ (SDNY, Sept. 10, 2020) (per curiam) (Juris. State-
ment 83a–94a); San Jose v. Trump, ___ F. Supp. 3d ___, ___
– ___ (ND Cal., Oct. 22, 2020) (slip op., at 72–85); Useche v.
Trump, No. 8:20–cv–02225 (D Md., Nov. 6, 2020) (slip op.,
at 21–30). Once again, the memorandum calls for “the ex-
clusion of illegal aliens from the apportionment base” that
will be used for the “reapportionment of Representatives
following the 2020 census,” and orders the Secretary of
Commerce to transmit information permitting the Presi-
dent to carry out that policy. 85 Fed. Reg. 44680. The plain-
tiffs challenge that policy on both constitutional and statu-
tory grounds, arguing that it contravenes the directives to
report the “tabulation of total population by States . . . as
required for the apportionment,” 13 U. S. C. §141(b), and to
include the “whole number of persons in each State, exclud-
ing Indians not taxed.” U. S. Const., Amdt. 14, §2; 2 U. S. C.
§2a(a). Consistent with this Court’s usual practice, I would
avoid the constitutional dispute and resolve this case on the
statutory question alone.
While that statutory question is important, it is not diffi-
cult. Our tools of statutory construction all point to “usual
residence” as the primary touchstone for enumeration in
the decennial census. The concept of residency does not
Cite as: 592 U. S. ____ (2020) 11
BREYER, J., dissenting
turn, and has never turned, solely on a person’s immigra-
tion status. The memorandum therefore violates Congress’
clear command to count every person residing in the coun-
try, and should be set aside.
A
First, we have the text. The modern apportionment
scheme dates back to 1929. See 46 Stat. 21 (1929 Act). The
relevant language provides that the apportionment base
shall include “the whole number of persons in each State”
“as ascertained under the . . . decennial census.” §22, id.,
at 26 (codified at 2 U. S. C. §2a(a)); see 13 U. S. C. §141(b)
(requiring the Secretary to transmit the “tabulation of total
population by States” as required for apportionment (em-
phasis added)). The usual meaning of “persons,” of course,
includes aliens without lawful status. This Court has said
as much, and the Government does not argue otherwise.
See Plyler v. Doe, 457 U. S. 202, 211 (1982). Similarly, the
plain meaning of the phrase “in each State,” both in 1929
and now, does not turn on immigration status. Rather, as
we explained in Franklin, that phrase has always been un-
derstood to connote some idea of “usual residence,” picking
up a person who is an “ ‘inhabitant’ ” of the State. 505 U. S.,
at 804–805; see also Wesberry v. Sanders, 376 U. S. 1, 13
(1964). Neither “resident” nor “inhabitant” takes account
of whether someone is lawfully, as opposed to unlawfully,
present. See “Inhabitant,” Webster’s New International
Dictionary 1109 (1927) (“One who dwells or resides perma-
nently in a place”); “Resident,” id., at 1814 (“One who re-
sides in a place; one who dwells in a place for a period of
more or less duration”).
Moreover, the statute (like the Constitution) explicitly ex-
cludes only one category of persons from the apportion-
ment, “Indians not taxed,” 2 U. S. C. §2a(a), though it is ev-
ident they “reside” within the United States. Congress
clearly knew how to exclude a certain population that would
12 TRUMP v. NEW YORK
BREYER, J., dissenting
otherwise meet the traditional residency requirement when
it wished to do so. Yet it did not single out aliens without
lawful status in the 1929 Act.
Second, historical practice leaves little doubt about the
statute’s meaning. From the founding era until now, enu-
meration in the decennial census has always been con-
cerned with residency, not immigration status. The very
first Act setting forth the decennial census procedure stated
that persons should be counted if they “ ‘usually resid[e] in
the United States.’ ” Franklin, 505 U. S., at 804 (citing Act
of Mar. 1, 1790, ch. 2, §5, 1 Stat. 103). The 1820 decennial
census included “foreigners not nationalized” among the
schedule of whole number of persons to be tabulated within
each State. See Act of March 14, 1820, 3 Stat. 550. The
1860 census included escaped slaves living in the North,
although those persons were unlawfully present at that
time. See San Jose, ___ F. Supp. 3d., at ___, 2020 WL
6253433, *7 (citing Record in No. 5:20–cv–5167, ECF No.
64–22, pp. 5–7 (Decl. of Shannon D. Lankenau)). The 1920
census population count included a minor who had been de-
nied lawful admission to the United States, but who was
nonetheless paroled within the country during World War
I until she could be sent home. See Record in No. 20–cv–
5770, Doc. 149–2, Exh. 61, ¶3 (Decl. of Jennifer Mendel-
sohn) (discussing the inclusion of the minor petitioner in
Kaplan v. Tod, 267 U. S. 228 (1925), in the census count).
All told, at the time Congress wrote the 1929 Act, the
United States had conducted more than a dozen decennial
censuses. As the Government acknowledged below, none of
them excluded residents solely because of immigration sta-
tus. Juris. Statement 91a. Any contemporary understand-
ing of the words “persons in each State” as ascertained un-
der the “decennial census” would have reflected this
longstanding and uniform practice. See McQuiggin v. Per-
kins, 569 U. S. 383, 398, n. 3 (2013) (“Congress legislates
against the backdrop of existing law”). Taken together, the
Cite as: 592 U. S. ____ (2020) 13
BREYER, J., dissenting
history is clear as to the statute’s reach; it includes the peo-
ple who reside here, lawful status or not.
Third, the records from the legislative debate confirm
that Congress was aware that the words of the statute bore
this meaning. By 1929, federal immigration laws had been
on the books for more than four decades, if not longer. See
Kleindienst v. Mandel, 408 U. S. 753, 761 (1972). Some
state laws for apportioning representatives explicitly ex-
cluded aliens, aware that an apportionment based simply
on “the whole number of persons” under the federal decen-
nial census would otherwise include them. See 71 Cong.
Rec. 1977 (1929) (discussing a New York state statute that
defined the apportionment base to include the number of
“inhabitants, excluding aliens”). Time and again through-
out the debate over what became the 1929 Act, members
considered (and rejected) proposals that would have ex-
cluded aliens from the apportionment base. See, e.g., id., at
2065–2068, 2360, 2451–2455. The debates evince a shared
understanding that without such an amendment, the Act
would include those “aliens” present “without the consent
of the American people.” Id., at 1919. See also id., at 1976
(Sen. Barkley) (discussing “unlawful immigrants” “who
have no legal status”). This understanding was shaped not
only by the ordinary meaning of the words, but also by leg-
islators’ view of the meaning of those words as they appear
in the Constitution.
In particular, Senator David A. Reed of Pennsylvania
noted his support for the policy of excluding aliens without
lawful status, but refrained from voting in favor of a pro-
posal to do just that because he did not believe that the Con-
stitution allowed it. Id., at 1958. See also id., at 1821–1822
(reprinting C. Turney, Power Of Congress To Exclude Al-
iens From Enumeration For Purposes Of Apportionment Of
Representatives (April 30, 1929)); 71 Cong. Rec. 2065–2066
(discussing a proposed amendment that would immediately
remove aliens from apportionment “upon the ratification of
14 TRUMP v. NEW YORK
BREYER, J., dissenting
any amendment to the Constitution excluding aliens”).
That same year, two constitutional amendments were in-
troduced in Congress to exclude aliens from the apportion-
ment base. Neither succeeded. See San Jose, ___ F. Supp.
3d., at ___, 2020 WL 6253433, *5 (citing Hearing on H. J.
Res. 102 and H. J. Res. 351 before the House Committee on
the Judiciary, 70th Cong., 2d Sess., 1 (1929)). All told, Con-
gress was well aware of the implications of its chosen lan-
guage for the precise question we face here.
Fourth, the decades following the 1929 Act tell the same
story. Just like every census that came before, no census
since has excluded people based solely on immigration sta-
tus. Instead, the census has continued to look to usual res-
idence as the relevant criterion. At numerous points, the
Executive Branch has reaffirmed its view that the law
simply does not allow for the exclusion of aliens without
lawful status who reside in the United States. See, e.g., 135
Cong. Rec. 22521 (1989) (printing Letter from C. Crawford,
Assistant Attorney Gen., to Sen. Bingaman (Sept. 22,
1989)); Hearing before the Subcommittee on Energy, Nu-
clear Proliferation, and Government Processes of the Sen-
ate Committee on Governmental Affairs, Enumeration Of
Undocumented Aliens In The Decennial Census, 99th
Cong., 1st Sess., 19 (1985) (“Traditional understanding of
the Constitution and the legal direction provided by the
Congress has meant that for every census since the first one
in 1790, we have tried to count residents of the country, re-
gardless of their status”) (Statement of Census Bureau Di-
rector J. Keane); Federation for Am. Immigration Reform v.
Klutznick, 486 F. Supp. 564, 576 (DDC 1980) (“The Census
Bureau has always attempted to count every person resid-
ing in a State on census day, and the population base for
purposes of apportionment has always included all persons,
including aliens both lawfully and unlawfully within our
borders”). Those in the Legislative Branch have routinely
reached the same result. See, e.g., 135 Cong. Rec. 14551
Cite as: 592 U. S. ____ (2020) 15
BREYER, J., dissenting
(Statement of Sen. Bumpers); Hearing on S. 2366 before the
Subcommittee on Energy, Nuclear Proliferation, and Fed-
eral Services of the Senate Committee on Governmental Af-
fairs, 96th Cong., 2d Sess., 12 (1980) (Statement of Sen.
Javits); 86 Cong. Rec. 4372 (1940) (Statement of Rep. Cel-
ler). While some members may have considered the consti-
tutional question unsettled, all accepted that the governing
statutes would have to be changed to exclude undocu-
mented immigrants. See, e.g., 135 Cong. Rec. 14540 (State-
ment of Sen. Shelby) (proposing an amendment to allow the
Census Bureau to depart from its “established policy” and
exclude aliens); Hearing on S. 2366, at 1 (discussing a bill
that would “require that the numbers be adjusted down-
ward to account for people who are not in this country le-
gally”). The apparently uniform view was that the statute
requires the inclusion of all people who usually reside
within the United States. See Franklin, 505 U. S., at 804.
Each branch, interpreting the law for itself, has followed
the text and history to the same conclusion.
The 2020 census, in fact, proceeded along this course, at
least until the Presidential memorandum. According to the
Census Bureau’s regulations, the “enumeration proce-
dures” for the 2020 census “are guided by the constitutional
and statutory mandates to count all residents of the several
states.” 83 Fed. Reg. 5525, 5526 (2018). In adopting the
Rule, the Census Bureau considered a comment expressing
concern over the inclusion of “undocumented people,” but
adhered to its policy of counting all foreign citizens “if, at
the time of the census, they are living and sleeping most of
the time at a residence in the United States.” Id., at 5530.
The Rule goes on to clarify that “[p]eople in federal detention
centers on Census day, such as . . . Immigration and Cus-
toms Enforcement (ICE) Service Processing Centers, and
ICE contract detention facilities” will be “counted at the fa-
cility.” Id., at 5535. That Rule did not suggest that enu-
meration would turn on immigration status. The novelty of
16 TRUMP v. NEW YORK
BREYER, J., dissenting
the interpretation reflected in the memorandum, after
nearly 100 years of a contrary and consistent position, is yet
another strong indication that the Government’s reading of
the statute is wrong. See Montana v. Wyoming, 563 U. S.
368, 387 (2011).
To summarize: The text of the 1929 Act is concerned with
usual residence, not immigration status. The history, both
before and after the legislation, has for decades been in ac-
cord with that straightforward interpretation. And all
three branches of Government, when facing the exact ques-
tion presented in this case, have uniformly arrived at the
same result.
B
In the face of this evidence, the Government principally
relies on scattered historic sources from the founding era,
which it argues imbue the words of the statute with a more
restrictive meaning. The Government’s argument relies on
two assumptions. First, the Framers intended for the con-
stitutional language “whole number of free persons” to be
read as synonymous with the word “inhabitant,” a legal
term of art the Government believes excludes those who are
in the country in violation of the law. Second, when Con-
gress carried forward the constitutional text into the 1929
Act, it understood those words to have that narrower mean-
ing.
There are defects in both links of this chain. First, the
argument is not convincing with respect to the widely ac-
cepted meaning of the Constitution, either in the founding
era or at the time the Fourteenth Amendment was enacted.
In Franklin, we understood the term “inhabitant” as com-
parable to the concept of “usual residency,” which, as the
analysis above demonstrates, does not turn on immigration
status. 505 U. S., at 804–805. The historical evidence put
forward by the Government does not undermine that result.
Many of the Government’s sources simply show that the
Cite as: 592 U. S. ____ (2020) 17
BREYER, J., dissenting
“usual residence” criterion has been applied to immigrants.
See Dept. of Commerce and Labor, Bureau of the Census,
Thirteenth Census of the United States: Instructions to
Enumerators, April 15, 1910, 21 (1910) (stating that “aliens
who have left this country” should not be counted because
“nothing definite can be known as to whether such aliens
intend to return to this country”); Bas v. Steele, 2 F. Cas.
988, 993 (CC Pa. 1818) (concluding a foreign trader visiting
a port with cargo had not established “domicil[e]” in the
United States because “[g]oing to a place to obtain a cargo,
and coming away, does not give a [him] a domicil[e], or
make him an inhabitant”). Other sources show that immi-
gration laws themselves have taken account of similar cri-
teria for other purposes. See Department of Homeland Se-
curity v. Thuraissigiam, 591 U. S. ___, ___ (2020) (slip op.,
at 34) (discussing the significance of “ ‘acquir[ing] any dom-
icil[e] or residence within the United States’ ” for Due Pro-
cess rights to attach for those not naturalized or otherwise
officially admitted to the country (quoting Nishimura Ekiu
v. United States, 142 U. S. 651, 660 (1892))); see also
Kaplan, 267 U. S., at 230 (asking whether a minor was le-
gally “dwelling” in the United States for purposes of a nat-
uralization statute). These few instances of a court asking
whether an immigrant is “domiciled” in the country or has
an “intent to return” to the United States do not show that
immigration status is somehow a proxy for the concept of
residency. To the contrary, they show that these principles
can be applied to those lawfully and unlawfully present on
the same terms.
The Government’s argument for a narrower construction
of “inhabitant” turns largely on Vattel’s founding-era trea-
tise on the law of nations, which distinguishes between the
“inhabitants” and “citizens” of a nation. Brief for United
States 36 (citing 1 Vattel, The Law of Nations §213 (1760)).
Even assuming that the Government offers the best reading
of his work, and that this reading of Vattel informed the
18 TRUMP v. NEW YORK
BREYER, J., dissenting
Framers’ understanding of that field, his treatise simply
cannot bear the weight the Government puts on it. Vattel’s
work discussed international law, not the United States’
scheme for apportionment among the States, an issue not
intrinsically related to the law of nations nor one for which
founding-era thinkers drew on Vattel. The Apportionment
Clause emerged from an extensive and uniquely American
debate over both State representation and taxation. The
final language tied the two together, such that the burdens
of taxation would flow in proportion to the benefits of rep-
resentation. See Brief for Historians of the Census as Amici
Curiae 6–11. And however influential Vattel may have
been for other topics, the Federal Government did not begin
to restrict immigration into the United States until after
the Civil War. See Brief for State of California et al. as
Amicus Curiae 17. While the Government offers isolated
works from a different body of law—regarding a word that
does not appear in the constitutional text—the better guide
to the Constitution’s meaning is the specific historical evi-
dence about domestic apportionment, as well as the decades
of consistent practice that comports with the Clause’s plain
terms.
Second, and more importantly for this case, the Framers’
intent is not our focus. Instead, the question is the meaning
of the statute enacted in 1929. Even if the Government’s
sources evince some ambiguity over the meaning of the
Constitution’s census provisions in 1787 or 1868—a doubt-
ful proposition—the historical record had resolved it by the
time of the 1929 Act. There is simply no basis for thinking
that when Congress enacted the statute that mirrored the
constitutional language it was intending to depart so fun-
damentally from the procedures that had been consistently
applied up to that point.
Apart from the historical evidence, the Government of-
fers little more than its assertion that excluding aliens
without lawful status makes good policy sense. As the
Cite as: 592 U. S. ____ (2020) 19
BREYER, J., dissenting
memorandum reasons, “[e]xcluding . . . illegal aliens from
the apportionment base is more consonant with the princi-
ples of representative democracy underpinning our system
of Government.” 85 Fed. Reg. 44680. Whatever the merits
of that policy, it is not the approach to representative de-
mocracy that is set forth in the statute. Congress chose in-
stead a view of democracy wherein the Representatives are
apportioned based on “the whole number of persons in each
state,” not the whole number of voters, citizens, or lawful
residents.
The Government is surely correct that the statute pro-
vides the President and the Secretary some degree of dis-
cretion in carrying out their statutory responsibilities. The
concept of “usual residence” is an indeterminate one, which
“has continued to hold broad connotations.” Franklin, 505
U. S., at 805. The exercise of that discretion may involve a
number of judgment calls. How long must a person reside
in a State before it can be presumed that she intends to re-
main? Should prisoners be counted in the State of their in-
carceration, or the State where they resided prior to, and
where they intend to return following, their confinement?
In resolving such issues, the Executive’s judgment has con-
sistently been directed toward the meaning of “usual resi-
dence.” A policy that draws lines based on immigration sta-
tus does no such thing. Most aliens without lawful status
have lived exclusively in the United States for many years.
See Krogstad, Passel, and Cohn, Pew Research Center, Five
Facts About Illegal Immigration in the U. S. (2019). The
Government does not suggest otherwise. Its own Residency
Rule, which treated ICE detainees’ residency in the same
manner as other federal prisoners, recognizes the lack of
any logical relationship between immigration status and
residence. Put simply, discretion to interpret and apply a
statutory command is not a blank check to depart from it.
That, I fear, is what the Government has tried to do here.
20 TRUMP v. NEW YORK
BREYER, J., dissenting
Thus, the touchstone for counting persons in the decen-
nial census is their usual residence, not their immigration
status. That alone is enough to resolve this case, because
the memorandum seeks to exclude anywhere between tens
of thousands and millions of persons from the census count
based solely on their immigration status, and it does so for
the stated goal of changing the apportionment total at the
expense of the plaintiffs. The Government seems to believe
that its policy can stand so long as any alien without lawful
status is excludable on some other basis. However reason-
able such an ad hoc approach might be in theory, that is not
the policy the memorandum announces, nor does it support
excluding aliens without lawful status as a class. To the
extent there is some overlap between aliens without lawful
status and persons who would not be counted under the or-
dinary census procedures, that cannot justify the exclusion
of aliens simply on account of their immigration status. It
is our task to review the policy as promulgated, and that
policy draws a distinction that the statute does not allow.
III
It is worth considering the costs of the Presidential mem-
orandum’s departure from settled law. The modern census
emerged from periods of intense political conflict, whereby
politicians sought to exploit census procedures to their ad-
vantage. See Evans, 536 U. S., at 497 (THOMAS, J., concur-
ring in part and dissenting in part); Montana, 503 U. S., at451–452, and n. 25. In enacting the 1929 Act, Congress
sought to address that problem by using clear and broad
language that would cabin discretion and remove opportu-
nities for political gamesmanship. History shows that, all
things considered, that approach has served us fairly well.
Departing from the text is an open invitation to use discre-
tion to increase an electoral advantage. This produces the
hostility that the 1929 Congress sought to resolve.
Because I believe plaintiffs’ claims are justiciable, ripe for
Cite as: 592 U. S. ____ (2020) 21
BREYER, J., dissenting
review, and meritorious, I would affirm the lower court’s
holding. I respectfully dissent.