Trump v. New York

Citation141 S.Ct. 530,208 L.Ed.2d 365
Decision Date18 December 2020
Docket NumberNo. 20-366,20-366
Parties Donald J. TRUMP, President of the United States, et al., Appellants v. NEW YORK, et al.
CourtUnited States Supreme Court

Jeffrey B. Wall, Acting Solicitor General, Counsel of Record, Jeffrey Bossert Clark, Acting Assistant Attorney General, Hashim M. Mooppan, Counselor to the Solicitor General, Sopan Joshi, Senior Counsel to the Assistant Attorney General, Nicole Frazer Reaves Brinton Lucas, Assistants to the Solicitor General, Department of Justice, Washington, DC, for Appellants.

Matthew Colangelo, Chief Counsel for Federal Initiatives, Elena Goldstein, Deputy Chief, Civil Rights Bureau, Fiona J. Kaye, Assistant Attorney General, Letitia James, Attorney General, State of New York, Barbara D. Underwood, Solicitor General, Steven C. Wu, Deputy Solicitor General, Judith N. Vale, Senior Assistant, Solicitor General, Eric R. Haren, Special Counsel, New York, NY, Philip J. Weiser, Attorney General, State of Colorado, Denver, CO, William Tong, Attorney General, State of Connecticut, Hartford, CT, William Tong, Attorney General, State of Connecticut, Hartford, CT, Kathleen Jennings, Attorney General, State of Delaware, Wilmington, DE, Clare E. Connors, Attorney General, State of Hawai'i, Honolulu, HI, Kwame Raoul, Attorney General, State of Illinois, Chicago, IL, Aaron M. Frey, Attorney General, State of Maine, Augusta, ME, Brian E. Frosh, Attorney General, State of Maryland, Baltimore, MD, Maura Healey, Attorney General Commonwealth of Massachusetts, Boston, MA, Dana Nessel, Attorney General, State of Michigan, Lansing, MI, Keith Ellison, Attorney General, State of Minnesota, St. Paul, MN, Aaron D. Ford, Attorney General, State of Nevada, Las Vegas, NV, Gurbir S. Grewal, Attorney General, State of New Jersey, Trenton, NJ, Hector H. Balderas, Attorney General, State of New Mexico, Santa Fe, NM, Joshua H. Stein, Attorney General, State of North Carolina, Raleigh, NC, Ellen F. Rosenblum, Attorney General, State of Oregon, Salem, OR, Josh Shapiro, Attorney General Commonwealth of Pennsylvania, Harrisburg, PA, Peter F. Neronha, Attorney General, State of Rhode Island, Providence, RI, Thomas J. Donovan, Jr., Attorney General, State of Vermont, Montpelier, VT, Mark R. Herring, Attorney General, Commonwealth of Virginia, Richmond, VA, Robert W. Ferguson, Attorney General, State of Washington, Seattle, WA, Joshua L. Kaul, Attorney General, State of Wisconsin, Madison, WI, Karl A. Racine, Attorney General, District of Columbia, Washington, DC, Matthew Jerzyk, City Solicitor, City of Central Falls, Central Falls, RI, Mark A. Flessner, Corporation Counsel, City of Chicago, Chicago, IL, Zachary M. Klein, City Attorney, City of Columbus, Columbus, OH, James E. Johnson, Corporation Counsel, City of New York, New York, NY, Marcel S. Pratt, City Solicitor, City of Philadelphia, Philadelphia, PA, Cris Meyer, City Attorney, City of Phoenix, Phoenix, AZ, Yvonne S. Hilton, City Solicitor, City of Pittsburgh, Pittsburgh, PA, Jeffrey Dana, City Solicitor, City of Providence, Providence, RI, Dennis J. Herrera, City Attorney, City and County of San Francisco, San Francisco, CA, Peter S. Holmes, City Attorney, City of Seattle, Seattle, WA, Jo Anne Bernal, County Attorney, County of El Paso, El Paso, TX, Rolando L. Rios, Special Counsel, Counties of Hidalgo and Cameron, San Antonio, TX, Gary W. Kuc, County Solicitor, Howard County, Ellicott City, MD, Leslie J. Girard, County Counsel, County of Monterey, Salinas, CA, John Daniel Reaves, General Counsel U.S. Conference of Mayors, Washington, DC, for Appellees.

John A. Freedman, Elisabeth S. Theodore, R. Stanton Jones, Daniel F. Jacobson, Arnold & Porter Kaye Scholer LLP, Washington, DC, Perry Grossman, Christopher Dunn, Arthur N. Eisenberg, New York Civil Liberties Union Foundation, New York, NY, Dale E. Ho, Counsel of Record, Adriel I. Cepeda Derieux, Davin Rosborough, Sophia Lin Lakin, Theresa J. Lee, My Khanh Ngo, Cecillia D. Wang, American Civil Liberties Union Foundation, New York, NY, Andre I. Segura, Edgar Saldivar, Thomas Buser-Clancy, American Civil Liberties Union Foundation of Texas, Houston, TX, Julia A. Gomez, Peter J. Eliasberg, Aclu Foundation of Southern California, Los Angeles, CA, David D. Cole, Sarah Brannon, Ceridwen Cherry, American Civil Liberties Union Foundation, Washington, DC, Emily Rong Zhang, American Civil Liberties Union Foundation, San Francisco, CA, for Appellees.

Per Curiam.

Every ten years, the Nation undertakes an "Enumeration" of its population "in such Manner" as Congress "shall by Law direct." U.S. Const., Art. I, § 2, cl. 3. This census plays a critical role in apportioning Members of the House of Representatives among the States, allocating federal funds to the States, providing information for intrastate redistricting, and supplying data for numerous initiatives conducted by governmental entities, businesses, and academic researchers. Department of Commerce v. New York , 588 U.S. ––––, ––––, 139 S.Ct. 2551, 2561-2562, 204 L.Ed.2d 978 (2019).

Congress has given both the Secretary of Commerce and the President functions to perform in the enumeration and apportionment process. The Secretary must "take a decennial census of population ... in such form and content as he may determine," 13 U.S.C. § 141(a), and then must report to the President "[t]he tabulation of total population by States" under the census "as required for the apportionment," § 141(b). The President in turn must transmit to Congress a "statement showing the whole number of persons in each State, excluding Indians not taxed, as ascertained" under the census. 46 Stat. 26, 2 U.S.C. § 2a(a). In that statement, the President must apply a mathematical formula called the "method of equal proportions" to the population counts in order to calculate the number of House seats for each State. Ibid. ; see Department of Commerce v. Montana , 503 U.S. 442, 451–452, 112 S.Ct. 1415, 118 L.Ed.2d 87 (1992).

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. ––––, ––– S.Ct. ––––, ––– L.Ed.2d ––––, 2020 WL 6811251 (2020).

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, 133 S.Ct. 721, 184 L.Ed.2d 553 (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, 133 S.Ct. 721. 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, 134 S.Ct. 2334, 189 L.Ed.2d 246 (2014) (internal quotation marks omitted).

Two related doctrines of justiciability—each originating in the case-or-controversy requirement of Article III—underlie this determination. See DaimlerChrysler Corp. v. Cuno , 547 U.S. 332, 352, 126 S.Ct. 1854, 164 L.Ed.2d 589 (2006). First, a plaintiff must demonstrate standing, including "an injury that is concrete, particularized, and imminent rather than conjectural or hypothetical." Carney v. Adams , ante , at 6, ––– U.S. ––––, ––––, 141 S.Ct. 493, ––– L.Ed.2d ––––, 2020 WL 7250101 (2020) (internal quotation marks omitted). Second, the case must be "ripe"—not dependent on "contingent future events that may not occur as anticipated, or indeed may not occur at...

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