City of San Jose v. Trump, No. 20-CV-05167-RRC-LHK-EMC
| Citation | 497 F.Supp.3d 680 |
| Decision Date | 22 October 2020 |
| Docket Number | No. 20-CV-05167-RRC-LHK-EMC, No. 20-CV-05169-RRC-LHK-EMC |
| Parties | CITY OF SAN JOSE, CALIFORNIA, et al., Plaintiffs, v. Donald J. TRUMP, et al., Defendants. State of California, et al., Plaintiffs, v. Donald J. Trump, et al., Defendants. |
| Court | U.S. District Court — Northern District of California |
Gabrielle Downey Boutin, R. Matthew Wise, Office of the Attorney General Department of Justice, Sacramento, CA, for Plaintiffs State of California, Xavier Becerra.
Valerie Louise Flores, Kathleen Alice Kenealy, Michael Joseph Dundas, City Attorney's Office for the City of Los Angeles, Los Angeles, CA, for Plaintiff City of Los Angeles.
Monica J. Kilaita, Long Beach City Attorney's Office, Long Beach, CA, for Plaintiff City of Long Beach.
Maria Bee, Oakland City Attorney's Office, Oakland, CA, for Plaintiff City of Oakland.
Sue Ann Salmon Evans, Keith Alexander Yeomans, Dannis Woliver Kelley, Long Beach, CA, for Plaintiff Los Angeles Unified School District.
David Ilan Holtzman, Holland & Knight LLP, San Francisco, CA, for Plaintiff County of Los Angeles.
Daniel D. Mauler, Alexander Kenneth Haas, Brad Prescott Rosenberg, Jeffrey Bossert Clark, Pro Hac Vice, John V. Coghlan, Sopan Joshi, Diane Kelleher, John Robinson, United States Department of Justice, Washington, DC, for Defendants Donald J. Trump, Wilbur L. Ross, U.S. Department of Commerce, U.S. Census Bureau.
Daniel D. Mauler, Brad Prescott Rosenberg, Sopan Joshi, John Robinson, U.S. Department of Justice, Washington, DC, for Defendant Steven Dillingham.
Before: RICHARD R. CLIFTON, United States Circuit Judge, LUCY H. KOH, United States District Judge,
ORDER GRANTING PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT AND DENYING DEFENDANTS’ MOTION TO DISMISS
Before us are Plaintiffs’ Motion for Partial Summary Judgment and Defendants’ Motion to Dismiss, or in the Alternative, Motion for Partial Summary Judgment regarding the Presidential Memorandum of July 21, 2020, which declared that, "[f]or the purposes of the reapportionment of Representatives following the 2020 census, it is the policy of the United States to exclude from the apportionment base aliens who are not in a lawful immigration status." Excluding Illegal Aliens from the Apportionment Base Following the 2020 Census , 85 Fed. Reg. 44,679, 44,680 (July 23, 2020) (the "Presidential Memorandum").
Plaintiffs, which include the State of California, numerous cities and counties across the country, a school district, a public interest organization, and citizens, challenge the legality of the Presidential Memorandum.1 We conclude that the Presidential Memorandum violates the Constitution and two statutes. Specifically, the Presidential Memorandum violates the Apportionment and Enumeration Clauses of Article I, Section 2 of the Constitution and Section 2 of the Fourteenth Amendment of the Constitution; the constitutional separation of powers; the Census Act of 1954; and the Reapportionment Act of 1929.
Our decision is not based on any preference we might have on the question of whether, as a matter of policy, undocumented immigrants should be included for purposes of determining the apportionment of seats in the House of Representatives. The Presidential Memorandum provides reasons for its policy, but those are not for us to review. Rather, our conclusion is based upon our determination of what the law requires. The policy which the Presidential Memorandum attempts to enact has already been rejected by the Constitution, the applicable statutes, and 230 years of history.
Having considered the parties’ submissions; the parties’ oral arguments at the October 8, 2020 hearing; the relevant law; and the record in this case, we GRANT Plaintiffs’ Motion for Partial Summary Judgment and DENY Defendants’ Motion to Dismiss, or in the Alternative, Motion for Partial Summary Judgment.2
Prior to discussing the merits in this case, the Court provides the following background information in turn: (1) constitutional history; (2) proposed constitutional amendments and statutory history; (3) Executive Branch practice; (4) 2019 litigation regarding the census citizenship question; (5) the President's announcement to proceed with the citizenship question; (6) Executive Order 13,880 or the "Collecting Information Executive Order"; (7) census data collection; and (8) the Presidential Memorandum.
Article I, Section 2 requires an "actual Enumeration" to be conducted "every ... ten Years" for the purpose of apportioning representatives to the states. U.S. Const. art. I, § 2, cl. 3. Representatives were apportioned based on a formula, which involved "adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons." Id. Section 2 of the Fourteenth Amendment modified this formula to "count[ ] the whole number of persons in each state, excluding Indians not taxed." U.S. Const. amend. XIV, § 2. The drafting history of Article I, Section 2 and Section 2 of the Fourteenth Amendment show the Framers’ focus on including noncitizens in the apportionment base.
In 1787, when the Constitution was drafted, the Framers chose to constitutionalize the requirement that a census be conducted every decade. A purpose of this requirement was to regularly apportion the congressional representatives allocated to each state. As ratified, Article I, Section 2 requires an "actual Enumeration" to be conducted "within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years." U.S. Const. art. I, § 2, cl. 3. The "actual Enumeration" would count "the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons." Id.
This ratified text reflected earlier drafts as well. The previous draft of Article I, Section 2 comprised two clauses—an Apportionment Clause and a Direct Taxation Clause. The draft Apportionment Clause provided that Congress would "regulate the number of representatives by the number of inhabitants, according to the rule hereinafter made for direct taxation." 2 Records of the Federal Convention of 1787 at 566, 571 (M. Farrand ed. 1911) (emphasis added).3 The Direct Taxation Clause stated that "[t]he proportions of direct taxation shall be regulated by the whole number of free citizens and inhabitants, of every age, sex, and condition, including those bound to servitude for a term of years, and three fifths of all other persons not comprehended in the foregoing description, (except Indians not paying taxes)." Id. at 571 (emphasis added). These provisions were later consolidated into Article I, Section 2 by the Committee of Style. Id. at 553.
In the debates on Article I, Section 2, the Framers recognized that the number of representatives would be determined by the number of persons residing in each state, not the number of voters. 1 Farrand, supra , at 580–81 (). According to a speech by Alexander Hamilton, "every individual of the community at large has an equal right to the protection of government." Id. at 473 ().
In The Federalist No. 54, James Madison explained the importance of Article I, Section 2: "It is a fundamental principle of the proposed Constitution, that ... the aggregate number of representatives allotted to the several States is to be ... founded on the aggregate number of inhabitants ...." The Federalist No. 54. The Federalist Nos. 56 and 58 confirm the Constitution's decision to apportion based on the number of inhabitants. See The Federalist No. 56 (); The Federalist No. 58 (). Madison acknowledged that The Federalist No. 54.
In 1865, the Civil War ended, and the Thirteenth Amendment abolished slavery. On June 13, 1866, Congress passed the Fourteenth Amendment. By July 9, 1868, the Fourteenth Amendment was ratified by the states.
At the debates over the Fourteenth Amendment, Congress discussed how to adjust the apportionment formula. See Evenwel v. Abbott , 578 U.S. 54, 136 S. Ct. 1120, 1128, 194 L.Ed.2d 291 (2016) () (quoting J. Sneed, Footprints on the Rocks of the Mountain: An Account of the Enactment of the Fourteenth Amendment 28 (1997)). The Fourteenth Amendment changed the formula for apportionment by deleting the provisions for slaves as well as indentured servants. Compare U.S. Const. art. I, § 2, cl. 3 with U.S. Const. amend. XIV, § 2. The new formula apportioned representatives based on "the whole number of persons in each state, excluding Indians not taxed." U.S. Const. amend. XIV, § 2.
The drafters of the Fourteenth Amendment considered making more changes to Article I, Section 2. "Concerned that Southern States would not willingly enfranchise freed slaves," the drafters considered the "possibility of allocating House seats to States on the basis of voter population." Evenwel , 136 S. Ct. at 1127 (citing Sneed at 28). Representative Thaddeus Stevens of Pennsylvania drafted a proposal "that would have allocated House seats to States ‘according to their respective legal voters’ "...
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