Supreme Court kicks can down the road on Trump Census plan to exclude illegal aliens from House apportionment

Supreme Court kicks can down the road on Trump Census plan to exclude illegal aliens from House apportionment

The U.S. Supreme Court (6-3) has dismissed a challenge to a Trump administration plan to exclude counting illegal aliens in the part of the Census count for congressional redistricting purposes. One of the grounds for dismissal was, wait for it, lack of standing.

The Opinion was per curiam, meaning is was issued in the name of the court not by an individual Justice, with Breyer, Kagan, and Sotomayor dissenting.

Here is how the Court summarized procedural history:

This past July, the President issued a memorandum to the Secretary respecting the apportionment following the 2020 census. The memorandum announced a policy of excluding “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 feasible and consistent with the discretion delegated to the executive branch,” the President ordered the Secretary, in preparing his §141(b) report, “to provide information permitting 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 information in addition to a tabulation of population according to the criteria promulgated by the Census Bureau for counting 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 governments, organizations, and individuals. A three-judge District Court held that the plaintiffs, appellees here, had standing to proceed in federal court because the memorandum 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 District Court, the memorandum violates §141(b) by ordering the Secretary to produce two sets of numbers—a valid tabulation 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 memorandum unlawful and enjoined the Secretary from including 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 postponed consideration of our jurisdiction. 592 U. S. ___ (2020).

The Court found no standing to sue:

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 effect 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 injury” premised on the threatened impact of an unlawful apportionment 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.” Susan B. Anthony List v. Driehaus, 573 U. S. 149, 157 (2014) (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  lear 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 policy is “no more than conjecture” at this time. Los Angeles v. Lyons, 461 U. S. 95, 108 (1983).

This is being viewed as a Trump victory, but note what SCOTUS said — it all depends on what the Executive branch decides to do in the future, and SCOTUS seems to suggest illgal aliens cannot be excluded at such point as the Executive branch takes action:

And as the Government 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 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. See Reply Brief 4–5. 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. Franklin, 505 U. S., at 798….

Everyone agrees by now that the Government cannot feasibly implement the memorandum by excluding the estimated 10.5 million aliens without lawful status. Tr. of Oral Arg. 20, 63–64. Yet the only evidence speaking to the predicted change in apportionment unrealistically assumes that the President will exclude the entire undocumented population.

If the Executive branch is Biden-Harris, this will all be moot. They will count everyone for all purposes, a reversal of Trump policy. So by denying standing, SCOTUS effectively kicked the can down the road never to see the case again unless the current politics takes a dramatic turn by January 20.

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