The Volokh Conspiracy
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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.