The NCSL Blog


By Lisa Soronen

In an unauthored opinion in Trump v. New York, the U.S. Supreme Court declined to decide whether President DonaldTrump could lawfully and constitutionally direct the secretary of commerce to provide information to him about the number of undocumented persons so he could exclude them from the census apportionment base. As a result, Trump’s memorandum to this effect stands.

Demonstrators rally at the US Supreme Court on April 23, 2019, to protest a proposal to add a citizenship question in the 2020 Census. Mandel Ngan / AFP - Getty Images fileFederal law requires the secretary of commerce to “take a decennial census of population” and report to the president “[t]he tabulation of total population by states.” The president then transmits to Congress a “statement showing the whole number of persons in each state.”

Trump wants to exclude unauthorized persons from this census number which is used to apportion U.S. House of Representatives seats to the states. He asked the secretary of commerce to provide him the information he needs to do so. States and local governments and others sued the president claiming he has violated federal statutes governing the census as well as the U.S. Constitution.

The court did not decide this case on the merits now describing it as not yet ripe for a decision and “riddled with contingencies and speculation that impede judicial review.” The court noted that while the president “has made clear his desire to exclude aliens without lawful status from the apportionment base,” he has qualified the directive to gather the necessary information with language including “to the extent practicable” and “to the extent feasible.” According to the court, “the record is silent on which (and how many) aliens have administrative records that would allow the Secretary to avoid impermissible estimation, and whether the Census Bureau can even match the records in its possession to census data in a timely manner.”

Justice Stephen Breyer, joined by Justices Sonia Sotomayor and Elise Kagan, dissented. First, they disagree with the majority that the court shouldn’t hear the case. Second, they concluded that excluding undocumented persons from the apportionment base is unlawful.

The dissent rejected the majority’s conclusion that the injuries in this case are too speculative for the court to decide. “The government has confirmed that it can identify millions of [undocumented] 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.”

Breyer noted in his dissenting opinion that the challengers claim “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.”

The federal government responded that the challengers “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.” But Breyer pointed out “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.”

The majority opinion disagreed with Breyer’s conclusion that this case implicates federal funds stating: “federal funds are tied to data derived from the census, but not necessarily to the apportionment counts addressed by the memorandum.”

Regarding the merits of the case, the three dissenting justices would have held that excluding undocumented persons from the apportionment base violates federal law. Neither the term “persons” nor the term “in each State,” from the relevant statutory language describing the apportionment base as the “the whole number of persons in each state,” turn on immigration status, according to the dissent.

Lisa Soronen is executive director of the State and Local Legal Center and a regular contributor to the NCSL Blog on judicial issues.

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This blog offers updates on the National Conference of State Legislatures' research and training, the latest on federalism and the state legislative institution, and posts about state legislators and legislative staff. The blog is edited by NCSL staff and written primarily by NCSL's experts on public policy and the state legislative institution.