The Supreme Court just announced that it will hear a case involving the Trump administration’s plan to exclude illegal aliens from counting for the purpose of congressional apportionment.

The government filing challenges lower court injunctions, and provided in part:


Congress has provided that, for purposes of apportioning seats in the House of Representatives, the President shall prepare “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). It has further provided that the Secretary of Commerce shall take the decennial census “in such form and content as he may determine,” 13 U.S.C. 141(a), and shall tabulate the results in a report to the President, 13 U.S.C. 141(b). The President has issued a Memorandum instructing the Secretary to include within that report information enabling the President to implement a policy decision to exclude illegal aliens from the base population number for apportionment “to the maximum extent feasible and consistent with the discretion delegated to the executive branch.” 85 Fed. Reg. 44,679, 44,680 (July 23, 2020). At the behest of plaintiffs urging that the exclusion of illegal aliens would unconstitutionally alter the apportionment and chill some persons from participating in the census, a three-judge district court declared the Memorandum unlawful and enjoined the Secretary from including the information in his report. The questions presented are:

1. Whether the relief entered satisfies the requirements of Article III of the Constitution.
2. Whether the Memorandum is a permissible exercise of the President’s discretion under the provisions of law governing congressional apportionment.

In an Order accepting the case and ordering expedited briefing and oral argument on November 30, the Supreme Court ordered:

Further consideration of the question of jurisdiction is postponed to the hearing of the case on the merits. The case is set for argument on Monday, November 30, 2020. Appellants’ brief on the merits, and any amicus curiae briefs in support of appellants or in support of neither party, shall be filed on or before Friday, October 30, 2020. Appellees’ briefs on the merits, and any amicus curiae briefs in support of appellees, shall be filed on or before Monday, November 16, 2020. The reply brief shall be filed by 2 p.m., Monday, November 23, 2020.


The jurisdictional issue mentioned in the SCOTUS Order is whether the plaintiffs [Democrat-run states] challenging the Memorandum had “standing” to sue in court. Trump argues they did not, and therefore the lower court injunctions were invalid since there was no legitimate case:

The decision below contains numerous Article III errors that each independently justifies a reversal, and all of which stem from a basic mismatch between the ordered remedy and the identified injury. Most important, the judgment will become moot before it ever has any constraining legal effect on the government. As discussed in more detail below, this alone is a sufficient basis for summary reversal, and the related Article III errors made by the district court confirm the need for this Court’s prompt intervention….

That theory [adopted by the District Court] reflects a fundamental mismatch between the court’s award of relief in the future (prohibiting the Secretary from including information in his report to the President) and a speculative present injury (the Memorandum’s alleged “chilling effect” on participation in the census). That mismatch gives rise to multiple independent Article III defects.

The Supreme Court could decide to vacate the lower court on jurisdictional grounds, or reach the merits.


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