Common Cause v. Trump
| Citation | 506 F.Supp.3d 39 |
| Decision Date | 25 November 2020 |
| Docket Number | Case No. 1:20-cv-02023 (CRC) (GGK) (DLF) |
| Parties | COMMON CAUSE, et al., Plaintiffs, v. Donald J. TRUMP, et al., Defendants. |
| Court | U.S. District Court — District of Columbia |
Aron Fischer, Pro Hac Vice, Gregory L. Diskant, Pro Hac Vice, Jonah M. Knobler, Pro Hac Vice, Peter A. Nelson, Pro Hac Vice, Abigail E. Marion, Pro Hac Vice, Devon Hercher, Pro Hac Vice, Ethan Kisch, Pro Hac Vice, J. Jay Cho, Pro Hac Vice, Daniel Seth Ruzumna, Patterson Belknap Webb & Tyler LLP, New York, NY, for Plaintiffs Common Cause, City of Atlanta, City of Paterson, Partnership for the Advancement of New Americans, Roberto Aguirre, Sheila Aguirre, Paula Aguirre, Andrea M. Alexander, Debra De Oliveira, Sara Pavon, Jonathan Allan Reiss, Myrna Young.
Peter A. Nelson, Daniel Seth Ruzumna, Patterson Belknap Webb & Tyler LLP, New York, NY, for Plaintiffs Coleen P. Stevens Porcher, Raquel Morsy, Susan N. Wilson, Masa, Angelo Ancehta, Jeanne Ellen Raya, New Jersey Citizen Action, Dennis Vroegindewey, City of Dayton, Irene Sterling, City of Portland, Lilbert Roy Ontai, Thad Smith, Norma Mote, Josanna Smith, Stan Forbes, Center for Civic Policy, New Mexico Asian Family Center, Simon Fischer-Baum, Cynthia Dai, Connie Galambos Malloy, Inge Spungen, Nm Comunidades En Accion Y De Fe.
Brad P. Rosenberg, Elliott M. Davis, Sopan Joshi, U.S. Department of Justice Office of the Solicitor General, Washington, DC, for Defendants.
Before: KATSAS, Circuit Judge, COOPER and FRIEDRICH, District Judges., Opinion of the Court filed by Circuit Judge KATSAS., Dissenting opinion filed by District Judge COOPER.
GREGORY G. KATSAS, United States Circuit Judge, DABNEY L. FRIEDRICH, United States District Judge KATSAS, Circuit Judge : President Trump issued a memorandum directing the Secretary of Commerce to provide him with information to support excluding illegal aliens, to the extent feasible, from the enumeration used to apportion the House of Representatives. The Secretary has not yet determined what information he can provide, and the President has not yet determined which illegal aliens, if any, he can feasibly exclude. The plaintiffs seek to enjoin the Secretary from complying with the memorandum and to enjoin the President from excluding any illegal aliens from the apportionment base. We consider whether this lawsuit is ripe for review.
The Enumeration Clause of the Constitution requires an "actual Enumeration" of the population every ten years "in such Manner as [Congress] shall by Law direct." U.S. Const. art. I, § 2, cl. 3 (second sentence). This enumeration determines the number of seats for each State in the House of Representatives. As originally ratified, the Apportionment Clause provided that representatives "shall be apportioned among the several States ... according to their respective Numbers, which shall be determined by 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. (first sentence). Under the Fourteenth Amendment, the Constitution now apportions representatives "among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed." Id. amend. XIV, § 2.
Congress has established procedures for the necessary enumeration and apportionment, which require sequential action by the Secretary of Commerce and the President. To begin, the Secretary must "take a decennial census of population as of the first day of April" of each census year, "in such form and content as he may determine." 13 U.S.C. § 141(a). By the end of the year, the Secretary must complete the census and report to the President the resulting "tabulation of total population by States ... as required for the apportionment." Id. § 141(b). For purposes of apportionment, the census count may not use "the statistical method known as ‘sampling,’ " id. § 195, which involves the practice of inferring information about the entire population from a representative sample, see Utah v. Evans , 536 U.S. 452, 467–68, 122 S.Ct. 2191, 153 L.Ed.2d 453 (2002). The Bureau of the Census, an agency within the Department of Commerce, assists the Secretary in conducting the census. See 13 U.S.C. §§ 2, 21.
In turn, the President must perform three distinct tasks. First, he must determine "the whole number of persons in each State, excluding Indians not taxed, as ascertained under the ... decennial census of the population." 2 U.S.C. § 2a(a). From that population base, the President then must use the "method of equal proportions" to calculate "the number of Representatives to which each State would be entitled." Id. Finally, by January 10 of the year after the census year, the President must "transmit to the Congress a statement" showing both the population base and the ensuing apportionment. Id. The clerk of the House of Representatives then must notify each State of its number of representatives. Id. § 2a(b).
The Executive Branch has broad discretion over the enumeration process. As the Supreme Court twice has explained, the Enumeration Clause " ‘vests Congress with virtually unlimited discretion in conducting the decennial actual Enumeration,’ and ‘Congress has delegated its broad authority over the census to the Secretary.’ " Dep't of Commerce v. New York , ––– U.S. ––––, 139 S. Ct. 2551, 2566, 204 L.Ed.2d 978 (2019) (quoting Wisconsin v. City of New York , 517 U.S. 1, 19, 116 S.Ct. 1091, 134 L.Ed.2d 167 (1996) ) (cleaned up). This discretion extends to the President, who, as the head of the Executive Branch, may "direct the Secretary in making policy judgments that result in ‘the decennial census.’ " Franklin v. Massachusetts , 505 U.S. 788, 799, 112 S.Ct. 2767, 120 L.Ed.2d 636 (1992). Further, the President need not "adhere to the policy decisions reflected in the Secretary's report"; even after receiving the report, the President may change the census or direct the Secretary to "reform" it. Id. at 797–99, 112 S.Ct. 2767. Only after the President determines the final population count does the remainder of the process, including the apportionment calculation and the notifications, become "ministerial." See id. at 799, 112 S.Ct. 2767.
The 2020 census remains ongoing. The Secretary's report to the President is due on December 31, 2020, see 13 U.S.C. § 141(b), and the President's statement to Congress is due on January 10, 2021, see 2 U.S.C. § 2a(a). Census Bureau field operations have now ceased, see Ross v. Nat'l Urban League , ––– U.S. ––––, 141 S.Ct. 18, 208 L.Ed.2d 169 (2020) (mem.), but the Bureau continues to analyze and compile the data that it has collected.
For the 2020 census, the Bureau promulgated "Residence Criteria" to determine whether and where to count various categories of individuals. Final 2020 Census Residence Criteria and Residence Situations , 83 Fed. Reg. 5525 (Feb. 8, 2018). In general, the Bureau seeks to count people at their "usual residence," which is "where a person lives and sleeps most of the time." Id. at 5526. But the Residence Criteria also set forth specific counting rules. For example, federal employees living outside the United States are counted at their usual domestic residence, as determined by records from the employing agency, whereas other United States citizens living outside the country are not counted at all. See id. at 5533. As to foreigners, individuals living in the United States are counted "where they live and sleep most of the time"; diplomats are counted at the embassy or consulate where they are stationed; and visitors—such as foreigners "on a vacation or business trip" in the United States on the census day—are not counted. Id. Individuals "in federal detention centers on Census day," including facilities run by the U.S. Immigration and Customs Enforcement (ICE), are counted at the detention facility. Id. at 5535. College students are counted where they live at college, whereas boarding-school students are counted at their parents’ homes. Id. at 5534.
To collect data for the 2020 census, the Bureau proceeded in several steps. First, it invited every household in the United States to respond to a survey. See Proposed Information Collection , 83 Fed. Reg. 26,643 -02, 26,645 (June 8, 2018). Officials then visited nonresponsive households and attempted to conduct the survey in person. Id. Next, the Bureau sought any missing information from federal agency records and from proxies such as neighbors or landlords. Id. As a last resort, the Bureau imputed information to missing households based on data from the surrounding area. Hillygus Decla., ECF No. 31-24, ¶ 9; see also Utah v. Evans , 536 U.S. at 457–58, 122 S.Ct. 2191 ().
This case concerns the role of immigration status in the enumeration and apportionment processes. In 2018, the Secretary decided to include a citizenship question in the survey for the 2020 census. The Supreme Court held that doing so violated neither the Enumeration Clause nor the Census Act and was supported by the record before the Secretary. See New York , 139 S. Ct. at 2566–73. But the Court held that the Secretary's stated reasons for asking the citizenship question were pretextual, so it set aside his decision. See id. at 2573–76.
Two weeks later, the President issued an Executive Order seeking to compile citizenship data by other means. This order directed all executive agencies to help the Commerce Department to the "maximum assistance permissible, consistent with law, in determining the number of citizens, non-citizens, and illegal aliens in the country, including by providing any access that the Department may request to administrative records that may be useful in accomplishing that objective." Exec. Order No. 13880 § 3(a), 84 Fed. Reg. 33,821, 33,824 (July 11, 2019).
In July 2020, the President issued a memorandum seeking to...
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