505 U.S. 788 (1992), 91-1502, Franklin v. Massachusetts

Docket Nº:No. 91-1502
Citation:505 U.S. 788, 112 S.Ct. 2767, 120 L.Ed.2d 636, 60 U.S.L.W. 4781
Party Name:Franklin v. Massachusetts
Case Date:June 26, 1992
Court:United States Supreme Court
 
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Page 788

505 U.S. 788 (1992)

112 S.Ct. 2767, 120 L.Ed.2d 636, 60 U.S.L.W. 4781

Franklin

v.

Massachusetts

No. 91-1502

United States Supreme Court

June 26, 1992

Argued April 21, 1992

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

Syllabus

The Constitution requires that the apportionment of Representatives be determined by an "actual Enumeration" of persons "in each State," conducted every 10 years. Art. I, § 2, cl. 3; Amdt. 14, § 2. After the Secretary of Commerce takes the census in a form and content she determines, 13 U.S.C. § 141(a), she reports the tabulation to the President, § 141(b). He, in turn, sends Congress a statement showing the number of persons in each State, based on data from the "decennial census," and he determines the number of Representatives to which each State will be entitled. 2 U.S.C. § 2a(a). For only the second time since 1900, the Census Bureau (Bureau) allocated the Department of Defense's overseas employees to particular States for reapportionment purposes in the 1990 census, using an allocation method that it determined most closely resembled "usual residence," its standard measure of state affiliation. Appellees Massachusetts and two of its registered voters filed an action against, inter alios, the President and the Secretary of Commerce, alleging, among other things, that the decision to allocate federal overseas employees is inconsistent with the Administrative Procedure Act (APA) and the Constitution. In particular, they alleged that the allocation of overseas military personnel resulted in the shift of a Representative from Massachusetts to Washington State. The District Court, inter alia, held that the Secretary's decision to allocate such employees to the States was arbitrary and capricious under APA standards, directed the Secretary to eliminate them from the apportionment count, and directed the President to recalculate the number of Representatives and submit the new calculation to Congress.

Held: The judgment is reversed.

785 F.Supp. 230 (D.Mass.1992) reversed.

JUSTICE O'CONNOR delivered the opinion of the Court with respect to Parts I, II, and IV, concluding that:

1. There was no "final agency action" reviewable under the APA. Pp. 796-801.

(a) An agency action is "final" when an agency completes its decisionmaking process and the result of that process is one that will directly affect the parties. Here, the action that creates an entitlement to a particular number of Representatives and has a direct effect on the reapportionment is the President's statement to Congress. He is not required to transmit the Secretary's report directly to Congress. Rather, he uses the data from the "decennial census" in making his statement, and, even after he receives the Secretary's report, he is not prohibited from instructing the Secretary to reform the census. The statutory structure here differs from those statutes under which an agency action automatically triggers a course of action regardless of any discretionary action taken by the President. Japan Whaling Assn. v. American Cetacean Soc., 478 U.S. 221, distinguished. Contrary to appellees' argument, the President's action here is not ceremonial or ministerial. Apportionment is not foreordained by the time the Secretary gives the President the report, and the fact that the final action is the President's is important to the integrity of the process. Pp. 796-800.

(b) The President's actions are not reviewable under the APA. He is not specifically included in the APA's purview, and respect for the separation of powers and the President's unique constitutional position makes textual silence insufficient to subject him to its provisions. Pp. 800-801.

2. The Secretary's allocation of overseas federal employees to their home States [112 S.Ct. 2770] is consistent with the constitutional language and goal of equal representation. It is compatible with the standard of "usual residence," which was the gloss given the constitutional phrase "in each State" by the first enumeration Act and which has been used by the Bureau ever since to allocate persons to their home States. The phrase may mean more than mere physical presence, and has been used to include some element of allegiance or enduring tie to a place. The first enumeration Act also used "usual place of abode," "usual resident," and "inhabitant" to describe the required tie. And "Inhabitant," in the related context of congressional residence qualifications, Art. I, § 2, has been interpreted to include persons occasionally absent for a considerable time on public or private business. "Usual residence" has continued to hold broad connotations up to the present day. The Secretary's judgment does not hamper the underlying constitutional goal of equal representation, but, assuming that overseas employees have retained ties to their home States, actually promotes equality. Pp. 803-806.

O'CONNOR, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I and II, in which REHNQUIST, C.J., and WHITE,

Page 790

SCALIA, and THOMAS, JJ., joined, the opinion of the Court with respect to Part IV, in which REHNQUIST, C.J., and WHITE, BLACKMUN, STEVENS, KENNEDY, SOUTER, and THOMAS, JJ., joined, and an opinion with respect to Part III, in which REHNQUIST, C.J., and WHITE and THOMAS, JJ., joined. STEVENS, J., filed an opinion concurring in part and concurring in the judgment, in which BLACKMUN, KENNEDY, and SOUTER, JJ., joined, post, p. 807. SCALIA, J., filed an opinion concurring in part and concurring in the judgment, post, p. 823.

O'CONNOR, J., lead opinion

JUSTICE O'CONNOR delivered the opinion of the Court, except as to Part III.

As one season follows another, the decennial census has again generated a number of reapportionment controversies. This decade, as a result of the 1990 census and reapportionment, Massachusetts lost a seat in the House of Representatives. Appellees Massachusetts and two of its registered voters brought this action against the President, the Secretary of Commerce (Secretary), Census Bureau officials, and the Clerk of the House of Representatives, challenging, among other things, the method used for counting federal employees serving overseas. In particular, the appellants' allocation of 922,819 overseas military personnel to the State

Page 791

designated in their personnel files as their "home of record" altered the relative state populations enough to shift a Representative from Massachusetts to Washington. A three-judge panel of the United States District Court for the District of Massachusetts held that the decision to allocate military personnel serving overseas to their "homes of record" was arbitrary and capricious under the standards of the Administrative Procedure Act (APA), 5 U.S.C. § 701 et seq. As a remedy, the District Court directed the Secretary to eliminate the overseas federal employees from the apportionment counts, directed the President to recalculate the number of Representatives per State and transmit the new calculation to Congress, and directed the Clerk of the House of Representatives to inform the States of the change. The federal officials appealed. We noted probable jurisdiction, stayed the District Court's order, and ordered expedited briefing and argument. 503 U.S. 442 (1992). We now reverse.

I

Article I, § 2, cl. 3, of the Constitution provides that Representatives "shall be apportioned among the several States . . . according to their respective Numbers," which requires, by virtue of § 2 of the Fourteenth [112 S.Ct. 2771] Amendment, "counting the whole number of persons in each State." The number of persons in each State is to be calculated by "actual Enumeration," conducted every 10 years, "in such Manner as [Congress] shall by Law direct." U.S.Const., Art. I, § 2, cl. 3.

The delegates to the Constitutional Convention included the periodic census requirement in order to insure that entrenched interests in Congress did not stall or thwart needed reapportionment. See 1 M. Farrand, Records of the Federal Convention of 1787, pp. 571, 578-588 (rev. ed.1966). Their effort was only partially successful, as the congressional battles over the method for calculating the reapportionment still caused delays. After just such a 10-year stalemate after the 1920 census, Congress reformed the reapportionment process

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to make it virtually self-executing, so that the number of Representatives per State would be determined by the Secretary of Commerce and the President without any action by Congress. See S.Rep. No. 2, 71st Cong., 1st Sess., 2-3 (1929) ("The need for legislation of this type is confessed by the record of the past nine years, during which Congress has refused to translate the 1920 census into a new apportionment. . . . As a result, great American constituencies have been robbed of their rightful share of representation . . ."); United States Dept. of Commerce v. Montana, 503 U.S. 442, 451-452 and n. 25 (1992).

Under the automatic reapportionment statute, the Secretary of Commerce takes the census, "in such form and content as [s]he may determine." 13 U.S.C. § 141(a). The Secretary is permitted to delegate her authority for establishing census procedures to the Bureau of the Census. See §§ 2, 4.

The tabulation of total population by States . . . as required for the apportionment of Representatives in Congress . . . shall be completed within 9 months after the census date and reported by the Secretary to the President of the United States.

§ 141(b). After receiving the Secretary's report, 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, and the number of Representatives to which each State would be entitled under an apportionment of the then existing number...

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