Supreme Court Dismisses Lawsuit Challenging Trump's Plan to Exclude Undocumented Immigrants from Congressional Apportionment Counts—But the Case Could Soon Come Back

The case was dismissed on procedural grounds that will change when and if the administration actually decides which people will be excluded.


The Capitol.


This morning, the Supreme dismissed a lawsuit filed by various state and local governments challenging the legality of Donald Trump's plan to exclude undocumented migrants from population counts that determine the apportionment of seats in the House of Representatives. I wrote about the issues at stake in the case here and here, and in an amicus brief supporting the plaintiffs I submitted along with University of Texas law professor Sanford Levinson.

The Court's ruling in Trump v. New York does not actually address the merits of the lawsuit. Instead, it dismissed the case based on the procedural doctrines of standing ripeness, because at this point it is not clear how many migrants will actually be excluded from the count based on the administration's policy, and whether it will be enough to affect apportionment. This result is not surprising. The oral argument indicated that many of the justices preferred to avoid addressing the merits.

The per curiam opinion joined by the six conservative justices spells out their reasoning:

Two related doctrines of justiciability—each originating in the case-or-controversy requirement of Article III [of the Constitution]— underlie this determination….. First, a plaintiff must demonstrate standing, including "an injury that is concrete, particularized, and imminent rather than conjectural or hypothetical." Carney v. Adams, ante, at 6…. 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 President 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 implement in any manner whatsoever, let alone in a manner substantially likely to harm any of the plaintiffs here…..

Here the record is silent on which (and how many) aliens have administrative records that would allow the Secretary to avoid impermissible estimation, and whether the Census Bureau can even match the records in its possession to census data in a timely manner…. Uncertainty likewise 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….

At the end of the day, the standing and ripeness inquiries both lead to the conclusion that judicial resolution of this 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 dissent by Justice Stephen Breyer, on behalf of the three liberal justices, takes issue with the majority's standing analysis, arguing there is a high enough probability of injury here to resolve the case now. He emphasizes that there is enough evidence to show that the administration likely has the data to exclude hundreds of thousands undocumented migrants already:

We have long said that when plaintiffs "demonstrate a realistic danger of sustaining a direct injury as a result of [a policy's] operation or enforcement," 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)…. 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: "Excluding 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 apportionment 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 speculation" 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 apportionment….

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…

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 detention 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 approximately "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 apportionment.

I think Breyer has the better of the standing argument, and that the combination of the administration's clearly stated intent and the government's possession of data on numerous undocumented immigrants is enough to create a probablistic injury justifying standing. More generally, I have long advocated the abolition of standing requirements generally, which arise from a judicially created doctrine not actually in the Constitution, and cause more harm than good.

That said, I admit this is a tough case under current Supreme Court standing precedent. It has long been unclear exactly how likely an injury has to be in order to qualify as a "realistic danger" great enough to justify standing. In the present case, the risk is difficult to estimate, in part because it is not clear whether the administration can match the data it has on individual immigrants to census data for particular states. This aspect of standing doctrine—like many others—is a mess. Today's decision does little to fix the mess, since it doesn't articulate anything approaching a clear standard for for determining how great a probability of injury is enough.

As far as the Court is concerned, the way to determine whether a probablistic injury is probable enough to get standing is something like Justice Potter Stewart's famous description of the standard for determining what qualifies as pornography: "I know it when I see it." If a majority of Supreme Court justices, in their wisdom and majesty, determine that the probability is high enough, then it is. Otherwise not.

It is also notable that neither the majority nor the dissent gives any consideration to the "special solicitude" state governments are supposed to be entitled to for standing purposes, under the Supreme Court's 2007 decision in Massachusetts v. EPA. If that doctrine doesn't apply, it would have been useful for the majority to explain why.

Be that as it may, all nine justices recognize that the plaintiffs will have standing when and if the Trump administration determines how many (if any) undocumented immigrants it will try to exclude from the count -at least if that number is large enough to affect apportionment. The same applies if the number is large enough to affect the distribution of federal funds between states. For that reason, today's ruling may well not be the final word on the case. It all depends on what Trump manages to do between now and when he leaves office on January 20 (after which time President-elect Joe Biden is likely to rescind Trump's memorandum if the latter has not yet had a chance to implement it).

Today's decision is likely to draw comparisons with the Court's recent ruling in Texas v. Pennsylvania, where the Court rejected Texas' challenge to the electoral outcomes in four states that voted for Biden, also based on lack of standing. In both instances, a major lawsuit brought by state governments was dismissed on similar procedural grounds.

There is, however, a crucial difference between the two cases. In the Texas case, the Court made clear that it was simply impossible for Texas to ever get standing to file this sort of case against another state, because "Texas has not demonstrated a judicially cognizable interest in the manner in which another State conducts its elections." The issue was not the probability of the alleged injury in question, but the fact that it simply is not the type of injury that can justify standing in any situation, regardless of how likely it is to occur. By contrast, probability is the key issue in Trump v. New York. When and if the claimed injury becomes probable enough, the plaintiffs will have standing.

While the majority did not indicate any view on the merits of the case, Justice Breyer's dissent noted the liberal justices' agreement with the plaintiffs:

On the merits, I agree with the three lower courts that have decided the issue, and I would hold the Government's policy unlawful…

The plaintiffs challenge that policy on both constitutional and statutory 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, excluding 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 difficult. 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 turn, and has never turned, solely on a person's immigration status. The memorandum therefore violates Congress' clear command to count every person residing in the country, and should be set aside…

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))…. The usual meaning of "persons," of course,includes aliens without lawful status….

Moreover, the statute (like the Constitution) explicitly excludes only one category of persons from the apportionment, "Indians not taxed," 2 U. S. C. §2a(a), though it is evident they "reside" within the United States. Congress clearly knew how to exclude a certain population that would 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, enumeration in the decennial census has always been concerned with residency, not immigration status…

Although we focus on the constitutional issue, many of the points made by Breyer are similar to those emphasized in our amicus brief, especially the general nature of the word "persons" and the significance of the exclusion of "Indians not taxed."

Should the case come back to the Court, the oral argument suggests there is a good chance that at least two of the conservative justices will join with the liberals to rule against the administration. Most notably, newly appointed Justice Amy Coney Barrett indicated to the administration's lawyer that "a lot of the historical evidence and longstanding practice really cuts against your position." We'll have to see what happens when and if the Trump administration figures out exactly which people it will actually try to exclude from the apportionment count.

NEXT: Short Circuit: A Roundup of Recent Federal Court Decisions

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  1. “the Case Could Soon Come Back”

    Like that Austrian fellow – no, not him, the other Austrian fellow.

    1. I don’t see why this isn’t a _Baker v. Carr_ violation.

      You have two districts, each with 10,000 adults (over 18) in them.

      But in one of your districts, 3,000 are aliens ineligible to vote.
      Hence the vote of one of the 7,000 who is eligible to vote has a greater weight than the vote of one of the 10,000 voters in the other district.

      Wasn’t that the exact situation which led to Baker?

  2. It doesn’t seem to me this case is trying to enjoin the President from excluding illegal aliens from the Census count. (Though that might be their ultimate aim.) It’s trying to enjoin the Secretary from providing the President with information he could use to do so, in addition to the regular Census count.

    Strikes me that there’s nothing unlawful under any reasonable theory about the Secretary providing this information, so long as he also provides the regular number. It’s just answering a question.

    In any event, it seems moot, because the Census intends to finalize the count after January 20th, perhaps intentionally to cut Trump out of the loop.

  3. So what if World War 3 has broken out by 2030 and there’s a Chinese expeditionary force on American soil when we do the census? We have to… count them and apportion them federal representation? If the state of current law is yes, then this seems like a rules patch we should implement. If the answer is no, then I’m not sure why we’re treating different incursions differently.

    1. It’s absurd to think that a census would even happen if a large part of the US was under foreign military occupation. If a census did happen, it would likely only include those areas still under the solid control of the US government, which would mean there wouldn’t be significant numbers of foreign troops in those areas.

      1. That’s why I said an expeditionary force. The US is still in charge, there’s just foreign invaders on the soil. Do we count them? If so, this is the absurd result. If not, then why are we counting invaders operating on US soil in defiance of the federal government now?

        1. Do you expect the US military to just ignore them?

          Either they will be wiped out in short order and not need to be counted.

          Or they will have control of some portion of of US territory, and that entire territory would be excluded from the census by virtue of being under foreign military control.

        2. Sigh. Because illegal immigrants are not invaders. Landscaping and dishwashing are not soldiering.

    2. Ignoring the fact that you liken immigration to invasion as that has been dealt with time and again, this is about the meaning of “residence” which has always dealt with intent. You residence is where you currently live and intend to remain. A residence stays a residence until supplanted. The invading soldiers do intend to remain where the currently are, the intent is to go back home. Even if it is an invasion to increase land they haven’t set up their home yet. Immigrants, legal and illegal, intend to stay and live where they are.

      1. Not so much “dealt with” as “arbitrarily dismissed”, I think. We say “invasion is any entry unwanted by somebody with the authority to deny entry, you say it’s not an invasion unless it’s an army. We point to dictionaries, you scoff.

        1. Yeah, Brett, we scoff. Because you’ve got an outcome-oriented semantics game going that has convinced the hell out of yourself but not much else.

          1. You’re literally pointing at yourself in the mirror, and complaining about what you’re doing yourself.

            We’re using the word to mean what it has meant for time out of mind. You’re resorting to a definition, (It’s only “invading” if you do it with soldiers.) that was adopted only recently, in order to bolster your side’s position. Part of the current fad of inducing dictionaries to alter definitions of crucial words and phrases such as “racism”, “fascism”, “invade”, “court packing” and so forth, to write your side’s views into the language.

            “Invade” has always had a general meaning of entering a place against the will of those already there. Soldiers can invade, but so can anybody else.

            1. You’re literally complaining of some vast liberal conspiracy among dictionary editors, here. “The word means what I say it means, regardless of what all the dictionaries say! It’s just a big conspiracy to make some thoughts unthinkable!”

              Get a grip, Brett.

        2. You say you “point to dictionaries,” yet you don’t seem to even bother doing so here.

          What you’ve “defined” is a trespass, not an “invasion.” It turns out to be rather difficult to find any online dictionaries that share your particular sense of what constitutes an “invasion,” many in fact dispensing with any notion of an “authority to deny entry,” which you treat as essential to the concept.

          You’re not just stupid, you’re fucking lazy.

      2. Great. As part of World War 3, the Chinese have constructed a military fort and intend to stay, much as the US has military bases overseas. The personnel change as time marches on, but they’re “permanent” in the sense that their assignments are measured in years.

        So, do we count them and give them congressional representation? Absurd, and yet seemingly what’s required if we’re taking the position that a scofflaw existing in defiance of the law must be counted and given representation. If there’s a distinction to be drawn between class of invaders, then I’m very curious how you’re drawing the lines here.

        1. No we don’t count them.

          Either fort or no fort, they get wiped out in short order by the US military so we don’t need to count them.

          Or they have effective control of some US territory surrounding said fort. In which case, the entire territory controlled by the Chinese military force in the fort would be excluded from the census on grounds of being under foreign military control and therefore at least temporarily no longer part of the United States.

    3. “why we’re treating different incursions differently” — umm, because they _are_ materially different? E.g. the Constitution says “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it” — the situation you describe might justify suspending the Write while our current situation does not; not all “incursions” are constitutionally the same.

  4. “It is also notable that neither the majority nor the dissent gives any consideration to the “special solicitude” state governments are supposed to be entitled to for standing purposes, under the Supreme Court’s 2007 decision in Massachusetts v. EPA.”

    Did they give such solicitude to Texas in the recent election related case? Do you think they should have? Why are the states in this case entitled to such solicitude if Texas wasn’t?

    Note: I think they should have taken the Texas election case and stomped Texas on the merits.

    1. There was no such solicitude to give. There’s a difference between putting one’s thumb on the scale and throwing the scale out the window. Texas didn’t even have a non-frivolous argument for standing.

  5. 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.” …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 President 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.” Any prediction how the Executive Branch might eventually implement this general statement of pol-icy is “no more than conjecture” at this time.

    Funny how none of that mattered in Agudath Israel.

  6. “Of The People, By The People and For The People” means Any People who can evade ICE and cross the border into the US? Unfair to those without a land path to our borders, at the very least. Equal treatment would require a certain number of flights and ships be allowed to disgorge illegals in proportion to those who slip across our land borders.

  7. Trump is President. He will certainly abuse this information.

    The Framers did not anticipate that the President would be a child. This is not a matter for Constitutional interpretation. The relevant analysis is adolescent psychology.

    1. Trump is President-eject.

      His opportunity to influence this situation is limited.

      Bigoted clingers hardest hit.

  8. Let’s make certain everyone know exactly what went on here.

    The law itself is straight forward. Both the Constitution and the relevant statute make absolutely clear that inhabitants and not just citizens or legal residents are required to be counted for apportionment purposes. Both Originalists and Textualists would support that position because there is no other position they could take which would uphold their philosophies of the law.

    But the five Republican Justices (and let’s call them what they are) wanted badly to give Trump a win, and the CJ badly wants 6 to 3 rather than 5 to 4 decisions. And the Republican Justices, who have demonstrated animus to immigrants in the past just could not bring themselves to support Trump because the law is just so much against them that even they were unwilling to go there. Thus the decision was to punt, wait until the new administration, one that is dedicated to upholding the law rather than using it for personal prejudices and then have the case booted as being moot.

    That way they do not have to enshrine into law the concept that all inhabitants of a state are humans entitled to representation, something that in another time period they would have been happy to limit to white males.

    1. Sidney, yeah, that’s about the way I read it too. What I don’t understand is the suggestion that the case may come back soon. Even if Trump can push something through as policy, can he do anything to make it impossible for Biden to moot the case with his own different policy? Is it suggested that the SC might still get this case back before Trump leaves office?

      1. As I’ve said, the Census bureau has already stated an intention to come out with the final figures after January 20th, so this is likely to go from premature to moot without ever being relevant.

      2. It seems unlikely the case will return to the Court as it does not seem that Trump will have the data to submit to Congress for apportionment using only citizens or legal residents. Based purely on speculation I think that the career civil servants responsible for the information recognize the illegality of Trump’s efforts and will slow the process until Biden is sworn in.

        At that point Biden will tell the Court that the government is withdrawing its attempts to exclude anyone from the census and the case will be mooted. If Trump or his minions attempt to go back to the Court it seems they will fail for lack of standing.

        1. We talk a lot about civilian control of the military. But, you know what’s just as important in a democracy?

          Elected officials’ control of the bureaucracy.

          Career civil servants, if they think they’re being given illegal orders, can go to court to establish that they’re illegal. What they should NOT be doing is engaging in “dumb insolence”, slow walking orders they don’t like in the hope an election will replace the person issuing them.

          1. As I said, any ‘slow walking’ by staff is pure speculation on my part. But as for the part about career staff being able to go to court, well you know what they call people who did not suck up to Donnie, ‘former government employee . . . “

            1. Yes, that’s part of “elected control of the bureaucracy.” Elections can’t control the government if the government is run by people who don’t submit to the people we elect.

          2. Every single bureaucratic official has an obligation to uphold and follow the law, regardless of what they may be directed to do by elected officials (or, more often, political appointees).

            To suggest that duty applies only when and if they’ve brought a lawsuit in court (on what legal theory, exactly? what’s the cause of action, claimed injury, etc.? have you thought this through besides, “what procedural norm would bring about the result I want?) and proven as such, is to in fact embrace chaos. It’s like saying that Trump can order a military coup, and his generals ought to be considered bound to carry it out, unless they sue in court and get an opinion to the contrary.

            I can cite several examples from my experience where administration officials have implemented Trump’s directives with every bit of expediency that you would demand of them. The result is often rule-making that simply violates or ignores the law. It will take years to undo this damage, through consumer and industry lawsuits and burdensome regulatory changes. In the meantime, industry must exist in limbo, awaiting final resolution of the legal issues, likely relying on interpretive or enforcement guidance that can be revoked immediately upon a change in administrations.

            Given the alternatives, a bit of feigned foot-dragging to prevent a plainly illegal rule from taking full effect seems preferable. Maybe don’t elect a crook as president, next time.

  9. I did not differentiate between Scalia and Ginsberg. All the Justices are Ivy indoctrinated, lawyers, living the rent seeking, big government culture of Washington. These decisions are highly predictable, biased in favor of the Democrat, big government side.

    1. For the record, ACB didn’t attend an Ivy, undergraduate or law school.

  10. Illegals always vote for the Democrat Party, by the millions.

    1. Illegal immigrants can’t vote at all.

  11. I suspect the unstated reason for the decision was that with the incoming Biden administration on record as planning to reverse the policy as soon as Biden becomes President, the odds of its actively going into effect while Trump is still President, and hence giving rise to a real dispute, seem rather low.

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