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
Representatives afforded to each State is based on an apportionment
of the total population, with each State receiving its proportional
share. The Government has announced a policy to exclude aliens
without lawful status from the apportionment base for the decennial
census. The Government does not deny that, if carried out, the
policy will harm the plaintiffs. 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, decades 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 Government’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
Presidential memorandum. In my view, that uncertainty does not
warrant our waiting to decide the merits of the plaintiffs’ claim.
It is true that challenges to apportionment have often 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 anticipated apportionment harm. See
Department of Commerce 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 consider”
government conduct that may affect apportionment). And that is what
I believe the Court should do here. Waiting 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 apportionment. 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.
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
imminent, 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 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) (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: “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. 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 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
announces 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 individuals from apportionment “could
result in the allocation of two or three [fewer] congressional
seats than would otherwise be allocated.” 85 Fed. Reg. 44680. Other
consequences 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
injuries” 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
plaintiffs 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 requirement
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 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 disproportionately 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 population for federal statutes that apportion
funds on the basis of States’ proportional population. Brief for
United States 19–20. At root, the Government contends that
“ripeness 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 certain
that the harms they identify will come about” to establish
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 presents 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 aliens,” 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 committed 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 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 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.
Of equal importance, plaintiffs argue that aside
from apportionment itself, the exclusion of aliens without lawful
status from the apportionment count will also negatively affect
federal funding that is based on per-State proportional decennial
population totals. Brief for Appellees New York Immigration
Coalition et al. 18–19; see also
Department of Commerce
v.
New York, 588 U. S. ___, ___ – ___ (2019) (slip op.,
at 9–10) (noting that even a small undercount 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 require that funding be allocated based
on the results “certified,” 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
tabulation 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 Andrew Reamer, Ph. D. as
Amicus Curiae
2–3. The Government counters that appellees have not identified any
reason why the individuals unlawfully removed from the tabulation
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 removal 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 urbanized areas”);
§5311(c)(3)(B)(iii) (for State share of “the population 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 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
uncertainty over the Government’s plans renders this litigation
unripe, nor that the apportionment process is at a “preliminary
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) (calling for federal departments to share
administrative records so the Department of Commerce can “generate
a more reliable count of the unauthorized alien population in the
country . . . [and] an estimate of the aggregate number
of aliens unlawfully present in each State”). For another, the
Government has told us in related litigation that further delays in
proceeding with apportionment beyond the statutory deadline would
harm “the ability to meet contingent redistricting 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. Acting 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
resolve this issue until after the President submits his tabulation
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 decennial census
by the President to Congress . . . the General
Assembly shall, not later than June 30, 2021, reapportion and
redistrict the State . . . for the general election of
2022”). It is of course possible that the Bureau will be unable to
find a significant number of matches between the millions 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 memorandum—say, by choosing to
“report” only those 50,000 aliens 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
Laboratories v.
Gardner,
387 U.S.
136, 149 (1967) (Harlan, J. for the Court) (explaining that the
timing of judicial review turns on “the fitness of the issues for
judicial decision and the hardship to the parties of withholding
court consideration”).
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 mandate to exclude aliens without
lawful status and reduce the number of Representatives to which
certain States are entitled, 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 decline
to resolve the case simply because the Government speculates that
it might not fully succeed.
For these reasons, I believe that the plaintiffs
have alleged a “substantial risk” that unlawfully subtracting
aliens without lawful status from the tabulation of the total
population that the President submits to Congress will inflict both
apportionment and appropriations injuries on them. Those injuries
are substantially likely to occur in the reasonably near future.
This case squarely presents a concrete 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. Statement 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 exclusion 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 President to carry out that policy. 85 Fed. Reg.
44680. 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.
A
First, we have the text. The modern
apportionment scheme dates back to 1929. See 46Stat. 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 (emphasis 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 understood 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 permanently in a place”);
“Resident,”
id., at 1814 (“One who resides in a place; one
who dwells in a place for a period of more or less duration”).
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. 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, 1Stat. 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, 3Stat. 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 denied 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 Mendelsohn) (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 status. Juris. Statement 91a. Any contemporary
understanding of the words “persons in each State” as ascertained
under the “decennial census” would have reflected this longstanding
and uniform practice. See
McQuiggin v.
Perkins,
569 U.S.
383, 398, n. 3 (2013) (“Congress legislates against the
backdrop of existing law”). Taken together, the history is clear as
to the statute’s reach; it includes the people 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 excluded aliens, aware that an
apportionment based simply on “the whole number of persons” under
the federal decennial 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 throughout the
debate over what became the 1929 Act, members considered (and
rejected) proposals that would have excluded 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 legislators’ 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
proposal to do just that because he did not believe that the
Constitution allowed it.
Id., at 1958. See also
id.,
at 1821–1822 (reprinting C. Turney, Power Of Congress To Exclude
Aliens 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 any amendment
to the Constitution excluding aliens”). That same year, two
constitutional amendments were introduced in Congress to exclude
aliens from the apportionment 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, Congress was well aware of the implications of its chosen
language 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
status. Instead, the census has continued to look to usual
residence 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, Nuclear Proliferation, and Government Processes of the
Senate 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, regardless of their status”) (Statement
of Census Bureau Director 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 residing 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 (Statement of Sen. Bumpers); Hearing on S. 2366 before the
Subcommittee on Energy, Nuclear Proliferation, and Federal Services
of the Senate Committee on Governmental Affairs, 96th Cong., 2d
Sess., 12 (1980) (Statement of Sen. Javits); 86 Cong. Rec. 4372
(1940) (Statement of Rep. Celler). While some members may have
considered the constitutional question unsettled, all accepted that
the governing statutes would have to be changed to exclude
undocumented immigrants. See,
e.g., 135 Cong. Rec. 14540
(Statement 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 downward to account for
people who are not in this country legally”). 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 procedures” 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 Customs Enforcement (ICE)
Service Processing Centers, and ICE contract detention
facilities” will be “counted at the facility.”
Id., at
5535. That Rule did not suggest that enumeration would turn on
immigration status. The novelty of 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 accord with that straightforward interpretation. And all
three branches of Government, when facing the exact question
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 constitutional
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 Congress carried forward the constitutional text
into the 1929 Act, it understood those words to have that narrower
meaning.
There are defects in both links of this chain.
First, the argument is not convincing with respect to the widely
accepted 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 comparable
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 “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 immigration laws themselves have taken account of
similar criteria for other purposes. See
Department of Homeland
Security v.
Thuraissigiam, 591 U. S. ___, ___
(2020) (slip op., at 34) (discussing the significance of
“ ‘acquir[ing] any domicil[e] or residence within the United
States’ ” for Due Process 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 legally “dwelling” in the United
States for purposes of a naturalization 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
treatise 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 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 representation. 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 evidence 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 doubtful
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 fundamentally from the
procedures that had been consistently applied up to that point.
Apart from the historical evidence, the
Government offers little more than its assertion that excluding
aliens without lawful status makes good policy sense. As the
memorandum reasons, “[e]xcluding . . . illegal aliens
from the apportionment base is more consonant with the principles
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 democracy that is set forth in the
statute. Congress chose instead 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 provides the President and the Secretary some degree of
discretion 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 remain? Should
prisoners be counted in the State of their incarceration, 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 consistently been directed toward the
meaning of “usual residence.” A policy that draws lines based on
immigration status 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.
Thus, the touchstone for counting persons in the
decennial 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 reasonable 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 ordinary 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 memorandum’s departure from settled law. The modern
census emerged from periods of intense political conflict, whereby
politicians sought to exploit census procedures to their advantage.
See
Evans, 536 U. S., at 497 (Thomas, J., concurring in
part and dissenting in part);
Montana, 503 U. S., at
451–452, 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 opportunities 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 discretion 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 review, and meritorious, I would affirm the
lower court’s holding. I respectfully dissent.