Case Information
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
STATE OF NEW YORK, et al., :
: Plaintiffs, : 20-CV-5770 (RCW) (PWH) (JMF)
: -v- : OPINION AND ORDER : DONALD J. TRUMP, in his official capacity as :
President of the United States , et al., :
:
Defendants. :
:
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Before: RICHARD C. WESLEY, United States Circuit Judge
PETER W. HALL, United States Circuit Judge
JESSE M. FURMAN, United States District Judge BACKGROUND ............................................................................................................................ 6
A. The Constitutional and Statutory Scheme........................................................................... 6 B. The Use of Census Data ...................................................................................................... 8 C. The Citizenship Question Litigation and Its Aftermath .................................................... 10 D. The 2020 Census ............................................................................................................... 12 E. The Presidential Memorandum ......................................................................................... 15 F. This Litigation ................................................................................................................... 17 SUMMARY JUDGMENT STANDARD .................................................................................... 19 STANDING AND RIPENESS ..................................................................................................... 20
A. The Law of Standing ......................................................................................................... 21 B. Facts Relevant to Standing................................................................................................ 25 C. Standing Analysis ............................................................................................................. 36 1. Injury in Fact ................................................................................................................. 40 a. Degradation of Census Data ..................................................................................... 41 b. Diversion of Resources ............................................................................................. 46 2. Traceability ................................................................................................................... 50 3. Redressability ................................................................................................................ 53 4. Conclusion .................................................................................................................... 57 D. Prudential Ripeness ........................................................................................................... 58 THE MERITS ............................................................................................................................... 62
A. Apportionment Must Be Based on the Results of the Census Alone ............................... 63 B. The Apportionment Base Cannot Exclude Illegal Aliens Who Reside in a State ............ 69 C. Conclusion ........................................................................................................................ 77 REMEDIES................................................................................................................................... 79
A. Injunctive Relief................................................................................................................ 79 B. Declaratory Relief ............................................................................................................. 84 CONCLUSION ............................................................................................................................. 85
PER CURIAM.
The Constitution provides that “Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State.” U.S. Const. amend. XIV, § 2. To enable that apportionment, it mandates that an “actual Enumeration” be conducted “every . . . ten Years, in such Manner as [Congress] shall by Law direct,” an effort commonly known as the decennial census. Id. art. I, § 2, cl. 3. Congress has delegated the task of conducting the census to the Secretary of Commerce, who is required to report “[t]he tabulation of total population by States” to the President. 13 U.S.C. § 141(a)-(b). The President, in turn, is required to transmit to 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” using a mathematical formula “known as the method of equal proportions.” 2 U.S.C. § 2a(a).
Throughout the Nation’s history, the figures used to determine the apportionment of Congress — in the language of the current statutes, the “total population” and the “whole number of persons” in each State — have included every person residing in the United States at the time of the census, whether citizen or non-citizen and whether living here with legal status or without.
On July 21, 2020, however, the President announced that this long-standing practice will no longer be the case. In a Presidential Memorandum issued on that date (and entered into the Federal Register two days later), the President declared that, “[f]or the purpose of the reapportionment of Representatives following the 2020 census” — which, as of today, is still ongoing — “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) (ECF No. 1-1) (the “Presidential Memorandum”). [1] To implement this new policy, the President ordered the Secretary of Commerce (the “Secretary”) to provide him two sets of numbers for each State: first, the total population as determined in the 2020 census and, second, the total population as determined in the 2020 census minus the number of “aliens who are not in a lawful immigration status.” Id. The President left it to the Secretary of Commerce to figure out how to calculate the number of “aliens who are not in a lawful immigration status” in each State. But one thing is clear: that number would not come from the census itself, as the 2020 census is not collecting information regarding citizenship status, let alone legal immigration status in this country, and the 2020 census will count illegal aliens according to where they reside.
In these consolidated cases, filed only three days after the Presidential Memorandum, two sets of Plaintiffs — one, a coalition of twenty-two States and the District of Columbia, fifteen cities and counties, and the United States Conference of Mayors (the “Governmental Plaintiffs”) and the other, a coalition of non-governmental organizations (the “NGO Plaintiffs”) — challenge the decision to exclude illegal aliens from the apportionment base for Congress on the ground that it violates the Constitution, statutes governing the census and apportionment, and other laws. On August 7, 2020, they filed a motion for summary judgment or, in the alternative, a preliminary injunction. Plaintiffs allege that the Presidential Memorandum will cause, or is already causing, two forms of irreparable harm. First, noting that the Presidential Memorandum itself identifies a State — believed to be California — that would stand to lose two or three seats in the House of Representatives if illegal aliens are excluded from the apportionment base, they argue that the Memorandum will result in the loss of seats in the House. Second, they argue that the Presidential Memorandum is having an immediate impact on the census count — which is still ongoing — and that that, in turn, is resulting, and will result, in various forms of injury. Defendants — the President, Secretary of Commerce Wilb u r L. Ross, Jr., Director of the U.S. Census Bureau Steven Dillingham (the “Director”), the United States Department of Commerce (the “Department”), and the Bureau of the Census (the “Census Bureau”) — oppose Plaintiffs’ motion and filed a cross-motion to dismiss, arguing that the Court lacks jurisdiction to entertain Plaintiffs’ claims and that the exclusion of illegal aliens from the apportionment base is a lawful exercise of the President’s discretion with respect to the conduct of the census and apportionment.
For the reasons that follow, Plaintiffs are entitled to summary judgment. The Presidential Memorandum violates the statutes governing the census and apportionment in two clear respects. First, pursuant to the virtually automatic scheme established by these interlocking statutes, the Secretary is mandated to report a single set of numbers — “[t]he tabulation of total population by States” under the decennial census — to the President, and the President, in turn, is required to use the same set of numbers in connection with apportionment. By directing the Secretary to provide two sets of numbers, one derived from the decennial census and one not, and announcing that it is the policy of the United States to use the latter in connection with apportionment, the Presidential Memorandum deviates from, and thus violates, the statutory scheme. Second, the Presidential Memorandum violates the statute governing apportionment because, so long as they reside in the United States, illegal aliens qualify as “persons in” a “State” as Congress used those words.
On those bases, we declare the Presidential Memorandum to be an unlawful exercise of
the authority granted to the President by statute and enjoin Defendants — but not the President
himself — from including in the Secretary’s report to the President any information concerning
the number of aliens in each State “who are not in a lawful immigration status under the
Immigration and Nationality Act.” Presidential Memorandum,
The merits of the parties’ dispute are not particularly close or complicated. Before getting to the merits, however, we must confront a question that is closer: whether we have jurisdiction to even consider the merits.
It is axiomatic that federal courts are courts of limited jurisdiction and may consider the merits of a case only if the case is of the sort traditionally amenable to, and resolvable by, the judicial process. That requires a plaintiff seeking relief in federal court to demonstrate that it has “standing” to bring suit and that its claims are ripe for decision. Here, if the sole harm that Plaintiffs alleged were the harm to their apportionment interests, they might not satisfy the requirements of standing and ripeness, as the Secretary has not yet taken any public action in response to the Presidential Memorandum and could conceivably conclude that it is not feasible (or lawful) to exclude illegal aliens from the apportionment base. But Plaintiffs allege — and have proved — that they are suffering, and will suffer, more immediate and certain injuries by virtue of the harm that the Presidential Memorandum is causing to the accuracy of the census count itself. In light of those injuries, we conclude that we have jurisdiction to grant Plaintiffs the relief they are seeking.
BACKGROUND
The following background facts, drawn from the admissible materials submitted by the
parties and materials of which the Court may take judicial notice, are undisputed except where
noted.
See, e.g.
,
Vt. Teddy Bear Co. v. 1-800 Beargram Co.
,
Article I of the Constitution requires that an “actual Enumeration” of the population, known as the decennial census, be conducted “every . . . ten Years, in such Manner as [Congress] shall by Law direct.” U.S. Const. art I, § 2, cl. 3. The primary purpose of this enumeration was to apportion congressional representatives among the States “according to their respective Numbers.” Id. The number of Representatives apportioned to each State determines, in turn, that State’s share of electors in the Electoral College. See id. art. II, § 1, cl. 2; see also 3 U.S.C. § 3. For the first eighty years of the Nation’s history, the States’ “respective Numbers” were calculated according to the formula set forth in the Constitution’s infamous “Three-Fifths Clause,” which provided that the “actual Enumeration” established by the census would be arrived at by “adding to the whole Number of free Persons . . . , and excluding Indians not taxed, three fifths of all other Persons” — “all other Persons” being people then held as slaves. U.S. Const. art I, § 2, cl. 3. In 1868, that provision was modified by the Fourteenth Amendment, which provides that “Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State , excluding Indians not taxed.” U.S. Const. amend. XIV, § 2 (emphasis added). [3]
The modern census is governed by the Census Act, which Congress most recently
amended in 1976.
See
Act. of Oct. 17, 1976 (the “Census Act” or the “Act”), Pub. L. No. 94-
521, 90 Stat. 2459 (codified in scattered sections of 13 U.S.C.). Section 141(a) of the Act
broadly delegates to the Secretary the duty to “take a decennial census of population as of the
first day of April of such year . . . in such form and content as he may determine.” 13 U.S.C. §
141(a). The Act then mandates that “[t]he tabulation of total population by States under
subsection (a) of this section as required for the apportionment of Representatives in Congress
among the several States shall be completed within 9 months after the census date” — in this
case, January 1, 2021 — “and reported by the Secretary to the President of the United States.”
Id.
§ 141(b). Within a short time thereafter — in this case, between January 3 and January 10,
2021 — “the President shall transmit to the Congress a statement showing the whole number of
persons in each State, excluding Indians not taxed, 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 of Representatives by the method known as the
method of equal proportions, no State to receive less than one Member.” 2 U.S.C. § 2a(a). The
Clerk of the House of Representatives must, in turn, “send to the executive of each State a
certificate of the number of Representatives to which such State is entitled” within fifteen days
of the President’s statement.
Id.
§ 2a(b). With limited exceptions not relevant here, the Census
Act strictly prohibits disclosure — even to other federal agencies — of any data or information
concerning individual respondents to the census.
See
13 U.S.C. §§ 8-9;
New York v. U.S. Dep’t
of Commerce
,
B. The Use of Census Data
Although the “initial” — and core — “constitutional purpose” of the census was to
“provide a basis for apportioning representatives among the states in the Congress” (and, in turn,
allocating members of the Electoral College), the census has long “fulfill[ed] many important
and valuable functions for the benefit of the country.”
Baldrige v. Shapiro
,
In
New York v. Department of Commerce
, the court described many of the varied uses
beyond congressional apportionment to which the federal, state, and local governments put
census data, which Plaintiffs reiterate in this case.
See
• The federal government relies on census data to allocate vast sums of money among and within States. In fiscal year 2016, for example, at least 320 such programs allocated about $900 billion using census-derived data. See id. at 596.
• State governments — including those among the Governmental Plaintiffs here — mandate the use of census data to draw intrastate political districts. See id. at 594- 95, 612; House of Representatives ,525 U.S. at 333 n.4, 334; see also, e.g. , ECF No. 76-11 (“Brower Decl.”), ¶ 16-18 (Minnesota); ECF No. 76-37 (“Rapoza Decl.”), ¶ 5 (Rhode Island).
• State law requires the use of census data for various purposes, ranging from the allocation of governmental resources and imposition of expenses among local governments to the setting of utility fees and official salaries. See New York v. Dep’t of Commerce ,351 F. Supp. 3d at 612-13 (citing various state statutes). • State and local governments — including those among the Governmental Plaintiffs here — rely on census data, including granular local-level “characteristic data,” to perform essential government functions. New York City, for example, makes important decisions about how to allocate public services in reliance on demographic data derived from the census, as when its Department of Education redraws school zone boundary lines, ECF No. 76-21, (“Salvo Decl.”), ¶ 15; when its Department of Health deploys resources based on its best understanding of the age, race, and Hispanic origin characteristics within particular communities, id. ¶ 14; and when its Population Division uses age data to target services for aged individuals, id . ¶ 16.
Thus, inaccuracies in federal census data would affect state and local governments — and, by extension, their residents — in many ways, only some of which would be measurable. Critically, in many instances, that would be true even if the total population counts were not materially affected — because of the importance of accuracy at the local or subgroup level. [4] C. The Citizenship Question Litigation and Its Aftermath
This is not the first time issues relating to the 2020 census have been brought in this
District. On March 22, 2018, the Secretary announced that he had decided to include “a question
about citizenship on the 2020 decennial census questionnaire,” claiming “that he was acting at
the request of the Department of Justice (DOJ), which sought improved data about citizen
voting-age population for purposes of enforcing the Voting Rights Act.”
Dep’t of Commerce v.
New York
,
Shortly after the Supreme Court affirmed Judge Furman’s judgment, the President
responded with an Executive Order aimed at “compil[ing]” citizenship data “by other means.”
Collecting Information About Citizenship Status in Connection With the Decennial Census,
Exec. Order No. 13,880 § 1, 84 Fed. Reg. 33,821, 33,821 (July 16, 2019). The Executive Order
directed “all executive departments and agencies” to provide to the Department “the maximum
assistance permissible, consistent with law, in determining the number of citizens and non-
citizens in the country, including by providing any access that the Department may request to
administrative records.”
Id.
§ 3 at 33,824. The Executive Order explained that data identifying
citizens would, among other things, “help . . . generate a more reliable count of the unauthorized
alien population in the country,” which “would,” in turn, “be useful . . . in evaluating many
policy proposals.”
Id.
§ 1 at 33,823. Noting that the Supreme Court’s decision in
Evenwel v.
Abbott
,
D. The 2020 Census
On February 8, 2018 the Census Bureau promulgated the “Residence Rule” establishing the residence criteria for the 2020 census. See Final 2020 Census Residence Criteria and Residence Situations, 83 Fed. Reg. 5525 (Feb. 8, 2018) (the “Residence Rule” or the “Rule”). “The residence criteria are used to determine where people are counted during each decennial census.” Id. at 5526. “[G]uided by the constitutional and statutory mandates to count all residents of the several states,” the Rule explains, “[t]he state in which a person resides and the specific location within that state is determined in accordance with the concept of ‘usual residence,’ which is defined by the Census Bureau as the place where a person lives and sleeps most of the time. . . . This concept of ‘usual residence’ is grounded in the law providing for the first census, the Act of March 1, 1790, expressly specifying that persons be enumerated at their ‘usual place of abode.’” Id. Applying these criteria, the Rule explains that all “[c]itizens of foreign countries living in the United States” are to be “[c]ounted at the U.S. residence where they live and sleep most of the time,” with the exception of “[c]itizens of foreign countries living in the United States who are members of the diplomatic community” (who are counted at the embassy, consulate, United Nations’ facility, or other residences where diplomats live) and “[c]itizens of foreign countries visiting the United States, such as on a vacation or business trip” (who are not counted at all). Id. at 5533. Notably, during the notice-and-comment process, the Census Bureau considered a comment “express[ing] concern about the impact of including undocumented people in the population counts for redistricting because these people cannot vote.” Id. at 5530. But the Census Bureau decided to “retain the proposed residence situation guidance for foreign citizens in the United States,” reiterating that “[f]oreign citizens are considered to be ‘living’ in the United States if, at the time of the census, they are living and sleeping most of the time at a residence in the United States .” Id. (emphasis added).
The Census Bureau relies on various means to obtain census data, beginning with a questionnaire to which households are asked to self-respond and ending with a set of procedures known as “Non-Response Follow-Up” operations. See New York v. Dep’t of Commerce , 351 F. Supp. 3d at 521. The 2020 census count “officially began in the rural Alaskan village of Toksook Bay” on January 21, 2020. U.S. Census Bureau, Important Dates , U.S. C ENSUS 2020, https://2020census.gov/en/important-dates.html (last visited September 7, 2020). Census operations were in full swing by mid-March, when the Census Bureau was confronted with the unprecedented challenge of the COVID-19 pandemic. On April 13, 2020, the Secretary and the Director announced that, due to the pandemic, the Census Bureau would temporarily suspend field data collection activities; seek a 120-day extension from Congress of the deadline “to deliver final apportionment counts”; and “extend the window for field data collection and self- response to October 31, 2020, which will allow for apportionment counts to be delivered to the President by April 30, 2021.” U.S. Department of Commerce Secretary Wilbur Ross and U.S. Census Bureau Director Steven Dillingham Statement on 2020 Census Operational Adjustments Due to COVID-19 , U.S. C ENSUS B UREAU (Apr. 13, 2020), https://www.census.gov/newsroom/ press-releases/2020/statement-covid-19-2020.html. In the following months, representatives of the Census Bureau reiterated on multiple occasions that additional time was required to complete the apportionment count and deliver it to the President. [5]
The Census Bureau resumed field operations in May 2020.
See
U.S. Census Bureau,
2020 Census Operational Adjustments Due to COVID-19
(“
Census Operations Adjustments
”),
U.S. C ENSUS 2020, https://2020census.gov/en/news-events/operational-adjustments-covid-19.
html (last visited Sept. 9, 2020). Despite the Census Bureau’s earlier statements indicating the
need for more time to complete the census, Director Dillingham announced on August 3, 2020,
that the Census Bureau would end field operations on September 30, 2020, a month earlier than
the previously announced deadline of October 31, 2020.
See Statement from U.S. Census Bureau
Director Steven Dillingham: Delivering a Complete and Accurate 2020 Census Count
, U.S. C ENSUS B UREAU (Aug. 3, 2020), https://www.census.gov/newsroom/press-releases/2020/
delivering-complete-accurate-count.html;
see also
ECF No. 62 (“NGO Pls. Compl.”), ¶¶ 10 &
n.3, 114, 174 n.69. As of today, therefore, the census is still ongoing — with enumerators
conducting in-person Non-Response Follow-Up work to ensure that any household that did not
self-respond to the census is nonetheless counted as part of the “actual Enumeration.”
See
Census Operations Adjustments
;
see also
ECF No. 34 (“Gov’t Pls.’ Compl.”), ¶ 130 & n.20. In
fact, there is some doubt about the date on which these efforts will end and the counting will
stop. On September 5, 2020, the Honorable Lucy H. Koh, United States District Judge for the
Northern District of California, entered a temporary restraining order enjoining the Census
Bureau from “implementing the August 3, 2020 [plan] or allowing to be implemented any
actions as a result of the shortened timelines in the August 3, 2020 [plan].”
Nat’l Urban League
v. Ross
, No. 20-CV-5799 (LHK),
E. The Presidential Memorandum
In the meantime — that is, with the census count still being conducted — on July 21, 2020, the President issued the Presidential Memorandum, titled “Excluding Illegal Aliens From the Apportionment Base Following the 2020 Census.” Presidential Memorandum, 85 Fed. Reg. at 44,679. In it, the President declared that, “[f]or the purpose 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 . . . to the maximum extent feasible and consistent with the discretion delegated to the executive branch.” Id. at 44,680. “Excluding these illegal aliens from the apportionment base,” the President posited, “is more consonant with the principles of representative democracy underpinning our system of Government. Affording congressional representation, and therefore formal political influence, to States on account of the presence within their borders of aliens who have not followed the steps to secure a lawful immigration status under our laws undermines those principles.” Id. Additionally, the President asserted that “[i]ncreasing congressional representation based on the presence of aliens who are not in a lawful immigration status would also create perverse incentives encouraging violations of Federal law” and that “States adopting policies that encourage illegal aliens to enter this country and that hobble Federal efforts to enforce the immigration laws passed by the Congress should not be rewarded with greater representation in the House of Representatives.” Id. Referring to one State with “more than 2.2 million illegal aliens” — apparently California, see ECF No. 75 (“Pls.’ Rule 56.1 Statement”), ¶ 4 — the Presidential Memorandum noted that “[i]ncluding these illegal aliens in the population of the State for the purpose of apportionment could result in the allocation of two or three more congressional seats than would otherwise be allocated.” Presidential Memorandum, 85 Fed. Reg. at 44,680.
To implement this new “policy of the United States,” the President directed the Secretary
to provide him with two sets of data. First, the Presidential Memorandum mandates that, “[i]n
preparing his report to the President under section 141(b) of title 13, United States Code, the
Secretary shall take all appropriate action, consistent with the Constitution and other applicable
law, to provide information permitting the President, to the extent practicable, to exercise the
President’s discretion to carry out the policy.”
Id.
Second, “[t]he Secretary shall
also
include in
that report information tabulated according to the methodology set forth in
Final 2020 Census
Residence Criteria and Residence Situations
, 83 FR 5525 (Feb. 8, 2018).”
Id.
(emphasis added).
In other words, to the extent “feasible” or “practicable,” the Secretary is now required to include
two
sets of numbers for each State in his report to the President under Section 141(b) of the
Census Act: first, the total population as determined in accordance with the Residence Rule,
which includes citizens of foreign countries “living in the United States,” without regard for the
legal status of such persons in this country, Residence Rule,
F. This Litigation
On July 24, 2020 — only three days after the Presidential Memorandum — both the Governmental Plaintiffs and the NGO Plaintiffs filed their initial complaints. See ECF No. 1; 20-CV-5781, ECF No. 1. [6] In their now-amended Complaints, Plaintiffs contend that the Presidential Memorandum violates the Constitution’s Enumeration Clause, as modified by the Fourteenth Amendment; is motivated by discriminatory animus toward Hispanics and immigrant communities of color, in violation of the equal protection component of the Fifth Amendment’s Due Process Clause; coerces state and local governments and denigrates the equal sovereignty of the States in violation of the Tenth Amendment; violates the constitutional separation of powers by usurping the authority Congress delegated to the Secretary; constitutes an ultra vires violation of 2 U.S.C. § 2a and 13 U.S.C. § 141; violates the APA; and violates the Census Act’s prohibition on the use of statistical sampling for purposes of congressional apportionment, see 13 U.S.C. §§ 141, 195. They seek a declaration that the Presidential Memorandum is unlawful, an injunction prohibiting Defendants from taking any action to implement or further the Memorandum, and writs of mandamus compelling the Secretary and the President to transmit figures that do not exclude illegal aliens based on immigration status.
The cases were initially assigned to Judge Furman alone, who consolidated them pursuant to Rule 42(a)(2) of the Federal Rules of Civil Procedure. ECF No. 43, at 1. On August 5, 2020, Judge Furman held an initial pretrial conference by telephone. During the conference, Plaintiffs advised that they intended to immediately file a motion for summary judgment (or, in the alternative, a preliminary injunction), and Defendants advised that they intended to file a motion to dismiss. ECF No. 79 (“Aug. 5, 2020 Tr.”), at 11, 27, 36-38; see also ECF No. 37 (“Joint Pre-Conference Ltr.”), at 6. Noting that Plaintiffs disclaimed the need for any discovery in connection with their motion for summary judgment or a preliminary injunction, Judge Furman set an expedited schedule and cautioned that, “[i]f defendants believe[d]” upon seeing Plaintiffs’ motion papers “that there is any need for discovery,” they were required “to confer” with Plaintiffs “immediately and then submit a joint letter.” Aug. 5, 2020 Tr. at 46.
At Plaintiffs’ request, and without objection from Defendants, Judge Furman filed a formal request on August 7, 2020, for the appointment of a three-judge district court pursuant to 28 U.S.C. § 2284(b). See ECF No. 68; see also ECF Nos. 58, 65. On August 10, 2020, the Honorable Robert A. Katzmann, then the Chief Judge of the Second Circuit, designated Judges Wesley and Hall to serve as the other members of a three-judge panel to hear these cases. See ECF No. 82. Thereafter, the panel adopted the scheduling order previously entered by Judge Furman alone. See ECF No. 86.
Pursuant to that scheduling order, Plaintiffs filed their motion on August 7, 2020. See ECF No. 74. Plaintiffs seek summary judgment (or, in the alternative, a preliminary injunction) on only some of their claims, namely that the Presidential Memorandum violates the Enumeration Clause and Fourteenth Amendment and constitutes an ultra vires violation of the statutes governing the census and apportionment. See ECF No. 77 (“Pls.’ Mem.”), at 10-40. Plaintiffs’ motion is supported by declarations of both fact and expert witnesses. See ECF No. 76 (“Colangelo Decl.”); ECF No. 149 (“Goldstein Decl.”).
In response, Defendants did not ask to depose Plaintiffs’ declarants or request discovery of any kind; nor did they seek a hearing. Instead, on August 19, 2020, they filed their opposition to Plaintiffs’ motion and a cross-motion to dismiss. See ECF No. 117. To the extent relevant here, they argue that the Court lacks jurisdiction to hear Plaintiffs’ claims because they are unripe and Plaintiffs lack standing; that the Enumeration Clause and ultra vires claims fail because the decision to exclude illegal aliens from the apportionment base is a lawful exercise of the President’s discretion with respect to the census and apportionment; that Plaintiffs are not entitled to injunctive relief because they cannot show irreparable harm; and that the President is not a proper defendant. See ECF No. 118 (“Defs.’ Mem.”). On August 28, 2020, the motions became fully briefed, see ECF No. 154 (“Defs.’ Reply”), and on September 3, 2020, the Court held oral argument by telephone.
SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate where the admissible evidence and pleadings
demonstrate “no genuine dispute as to any material fact and the movant is entitled to judgment as
a matter of law.” Fed. R. Civ. P. 56(a);
see also Johnson v. Killian
,
Liberty Lobby, Inc.
,
In ruling on a motion for summary judgment, a court must view all evidence “in the light
most favorable to the non-moving party,”
Overton v. N.Y. State Div. of Mil. & Naval Affs.
, 373
F.3d 83, 89 (2d Cir. 2004), and must “resolve all ambiguities and draw all permissible factual
inferences in favor of the party against whom summary judgment is sought,”
Sec. Ins. Co. of
Hartford v. Old Dominion Freight Line, Inc.
,
STANDING AND RIPENESS As noted, Plaintiffs move for summary judgment on two grounds: that Defendants’ decision to exclude illegal aliens from the apportionment base violates the Enumeration Clause and the Fourteenth Amendment of the Constitution; and that it exceeds the authority granted by Congress in the statutes that govern the census and congressional apportionment. See Pls.’ Mem. 10-40. Before reaching the merits of either argument, however, we must address Defendants’ contention that we lack jurisdiction. See, e.g. , Steel Co. v. Citizens for a Better Env’t , 523 U.S. 83, 88-89 (1998) (noting that subject-matter jurisdiction cannot be assumed and is a “threshold question that must be resolved . . . before proceeding to the merits”).
Defendants argue and move to dismiss on the ground that we lack jurisdiction for two
reasons: because Plaintiffs fail to establish that they have standing to sue and because their
claims are not yet ripe. Where, as here, the question is whether a plaintiff’s injury is sufficiently
“real and concrete rather than speculative and hypothetical, the ripeness inquiry merges almost
completely with standing.”
Thomas v. Anchorage Equal Rights Comm’n
,
A. The Law of Standing
Article III of the Constitution limits the “judicial Power” of the United States to “Cases”
and “Controversies.”
See
U.S. Const. art. III, § 2. This means that all suits filed in federal court
must be “cases and controversies of the sort traditionally amenable to, and resolved by, the
judicial process.”
Steel Co.
,
Injury in fact is “the first and foremost of standing’s three elements.”
Spokeo
, 136 S. Ct.
at 1547 (internal quotation marks, alterations, and citation omitted). “To establish injury in fact,
a plaintiff must show that he or she suffered an invasion of a legally protected interest that is
concrete and particularized and actual or imminent, not conjectural or hypothetical.”
Id.
at 1548
(internal quotation marks and citation omitted). Significantly, an injury “need not be actualized”
to satisfy Article III.
Davis v. Fed. Election Comm’n
,
The second element requires proof that the plaintiff’s injury is “fairly traceable” to the
defendant’s challenged conduct. Put differently, “there must be a causal connection between the
injury and the conduct complained of — the injury has to be fairly traceable to the challenged
action of the defendant, and not the result of the independent action of some third party not
before the court.”
Lujan
,
Third and finally, a plaintiff’s injury must be “redressable” by the relief sought — that is,
“it must be likely, as opposed to merely speculative, that the injury will be redressed by a
favorable decision.”
Lujan
,
B. Facts Relevant to Standing
Plaintiffs press two categories of harm: (1) “harms stemming from the exclusion of
undocumented immigrants in the apportionment count”; and (2) “harms caused by the
Memorandum’s deterrent effect on census participation.” Pls.’ Reply 29. With respect to the
first category, the Presidential Memorandum’s express goal is to stop “[a]ffording congressional
representation, and therefore formal political influence, to States on account of” their illegal alien
population. Presidential Memorandum,
With respect to the second category of harm, Plaintiffs submit a number of declarations
— uncontested by Defendants — demonstrating the Presidential Memorandum’s deterrent effect
on participation in the decennial census, particularly among noncitizens, immigrants, and their
family members, and, in turn, the adverse consequences that are likely to flow from that deterrent
effect.
[7]
The Presidential Memorandum deters census participation for at least two distinct
reasons. First, the Presidential Memorandum engenders fear and distrust among illegal aliens
and their families (and, more broadly, all noncitizens and their families), and deters these groups
from participating in the census out of fear of providing the federal government with information
by which their citizenship status may be ascertained (and any resulting adverse consequences).
Second, because the Presidential Memorandum announces that it is United States policy “to
exclude from the apportionment base aliens who are not in a lawful immigration status,”
Presidential Memorandum,
Several agency and non-profit organization leaders in charge of census outreach programs attest that many illegal aliens have expressed concern over, or outright refused to participate in, the census as a result of the Presidential Memorandum, both because they are apprehensive that the data will be used in immigration enforcement and because they perceive their participation as ultimately futile in light of the President’s explicit exclusion of illegal aliens for the purposes of apportionment. See, e.g. , ECF No. 76-4 (“Baldwin Decl.”), ¶ 8; ECF No. 76- 5 (“Banerji Decl.”), ¶ 5; Brower Decl. ¶ 11; Cullinane Decl. ¶ 8. Other immigrant respondents have expressed concern that “the Trump Administration would punish undocumented persons who filled out the Census by tracking and deporting them.” See, e.g. , ECF No. 76-30 (“Matos Decl.”), ¶¶ 9-13 (describing Delaware-based census advocacy program’s increased need to quell community fears that, in light of the Presidential Memorandum, responding to the census will result in deportation or bar Latinos from obtaining citizenship).
Notably, Plaintiffs’ evidence indicates that the effects of the Presidential Memorandum are likely to be felt beyond the illegal alien population. “Excluding undocumented immigrants from the apportionment base will deter Census participation among the broader immigrant community, including family and household members of undocumented immigrants who are actually citizens or non-citizens with legal status.” Espinosa Decl. ¶ 11; see also Khalaf Decl. ¶ 12 (“[S]ignificant fear and increased distrust about the Census . . . [is] not limited to undocumented immigrants or other non-citizens, but also to family, household members, friends, and community members of non-citizens, people for whom the new policy articulated in the Memorandum has generated fear about responding at all . . . .”). Of particular concern is the response in “mixed status households” — that is, households consisting of illegal aliens and residents with lawful status — where concerns about the security of identifying information being shared with the federal government are prevalent. See, e.g. , Espinosa Decl. ¶ 12 (describing a fear among individuals from mixed status households that “the Presidential Memorandum’s exclusion of people ‘not in lawful immigration status’ from the census base count indicates that the Administration will use information from the census to attempt to identify undocumented immigrants for deportation or other adverse consequences”). “Even U.S.-born citizen Puerto Rican residents are confused” by the Presidential Memorandum. ECF No. 76-16 (“Colón Decl.”), ¶ 11.
In addition to this extensive — and undisputed — record of fact witness testimony, Plaintiffs provide expert analyses describing the fear and confusion generated by the Presidential Memorandum among hard-to-count communities and the resultant chilling effect on census participation. See ECF No. 76-56 (“Barreto Decl.”), ¶ 14 (surveying research on the impact of media messages on immigrant communities’ trust in government and the impact of those communities’ trust on census response rates and concluding that “the July 21 [Presidential Memorandum] will reduce participation in the 2020 census, and ultimately will reduce the accuracy of the 2020 census”); ECF No. 76-57 (“Thompson Decl.”), ¶ 3 (concluding that the Presidential Memorandum “will significantly increase the risk of larger total and differential undercounts, relative to previous censuses, for the hard-to-count populations, including immigrant communities”). [8]
In short, the record supports a conclusion that the Presidential Memorandum has created, and is likely to create, widespread confusion among illegal aliens and others as to whether they should participate in the census, a confusion which has obvious deleterious effects on their participation rate. See ECF No. 76-1 (“Alvarez Decl.”), ¶ 10 (reporting “an increase in confusion amongst immigrant communities after” Memorandum was issued); see also Baldwin Decl. ¶ 8; ECF No. 76-9 (“Bird Decl.”), ¶ 9. As John Thompson, the former Director of the Census Bureau, predicts, “the effects of the Memorandum on the current macro environment are likely to be as great if not greater than the addition of a citizenship question .” Thompson Decl. ¶ 23 (emphasis added); see also Barreto Decl. ¶ 29. And the Census Bureau’s own advertising initiatives will struggle to ward off these effects even with “messag[ing] that respondent information is confidential” and that “[t]he Census Bureau will not share it with any outside entities, including law and immigration enforcement.” Thompson Decl. ¶ 21.
These deterrent effects have far-reaching ramifications, including increasing costs for census outreach programs run by NGOs and governments. Indeed, the NGO Plaintiffs have already diverted resources from their other important programs to shore up their census engagement efforts. For example, Plaintiff FIEL “has recently had to refocus its programming and commit additional resources to its Census work,” and “expects that it will need to interact with its constituents multiple times to answer questions and try to convince them to participate in the 2020 Census.” Espinosa Decl. ¶ 14; see also ECF No. 76-44, (“Sivongxay Decl.”), ¶ 18 (“[A]dditional one-on-one conversations and relational outreach are necessary to maintain trust among communities and census partners to ensure confidence that census information will remain confidential and that there are still important benefits to responding to the census, such as ensuring receipt of critical federal funding.”). Because the Presidential Memorandum “dilutes the efficacy” of the efforts by Plaintiff New York Immigration Coalition (“NYIC”) to ensure immigrants are counted in the census, NYIC will have “to divert resources from other programmatic areas to conduct additional education and outreach to get the same number of people to respond to the Census questionnaire.” Choi Decl. ¶ 17. Specifically, NYIC has had to “make new materials”; “conduct new outreach”; “engage[] in member updates, press releases, [and] press briefings”; “develop[] messaging and social media campaigns”; and “respond to inquiries from local media . . . to assure people” that every person should respond to the Census. Id. In other words, “NYIC expects that it will need to interact with its constituents more times than previously planned to try to convince them to participate in the 2020 census” as a result of the Presidential Memorandum. Id. ¶ 20. It estimates that the organization “will have to increase staff time and spending devoted to its Census education and outreach efforts by approximately 20% percent over previously anticipated levels.” Id. ¶ 21.
Plaintiffs American-Arab Anti-Discrimination Committee (“ADC”) and ADC Research Institute (“ADRCI”) have also had to divert resources away from other programmatic areas, including critical programs responding to COVID-19 issues. Khalaf Decl. ¶ 15. In response to the Presidential Memorandum’s messaging, ADC and ADRCI will “increase staff time and spending devoted [to] its Census education and outreach efforts by approximately 25[] percent over current levels,” id. ¶ 14, while the national president of both organizations reports that he “personally spent at least 35 hours on Census-related work since the release of the [Presidential] Memorandum” that he would have otherwise spent on other tasks related to the operation and mission of both organizations, id. ¶ 15. Plaintiff Ahri similarly will increase staff time and spending devoted to census education and outreach by approximately fifteen percent in response to the chilling effects of the Presidential Memorandum. ECF No. 76-43 (“Seon Decl.”), ¶ 17. According to Theo Oshiro, Deputy Director at the non-profit Make the Road New York (“MRNY), the Presidential Memorandum also “dilutes the efficacy of [MRNY’s] existing materials and programming, which requires MRNY to divert resources from other programmatic areas to strategize around how to make [its] education and outreach effective and to get the same number of people to respond to the Census questionnaire” as they would have absent the Memorandum. Oshiro Decl. ¶ 12. Finally, Plaintiff CASA also has had to “devote additional resources to addressing the confusion and fear that have resulted” from the Presidential Memorandum, including having “to reorganize its communication team, reassign staff to Census outreach and education, and revise and redistribute messaging materials.” Torres Decl. ¶¶ 22-23.
The Governmental Plaintiffs have also had to divert resources from other programs to mitigate the confusion caused by the Presidential Memorandum. Plaintiff Illinois, for example, has already had to spend funds on digital ads specifically designed to address misinformation about the census, has created printed materials to be distributed, and has produced social media videos and other digital communications to reassure the immigrant community about the importance of the census. Alvarez Decl. ¶ 12. Plaintiff Vermont, through its 2020 Complete Count Committee, has — in direct response to the Presidential Memorandum — provided “mini- grants” to increase outreach to hard-to-count communities, conducted additional open educational meetings, provided additional multilingual public service announcements, and otherwise promoted census participation. ECF No. 76-10 (“Broughton Decl.”), ¶ 7. Plaintiff Monterey County will “have to dedicate significant resources to ensure participation without fear” so that the County receives its proper census-based funding. ECF No. 76-28 (“Lopez Decl.”), ¶ 18; see also ECF No. 76-12 (“Bysiewicz Decl.”), ¶ 11 (describing efforts by Plaintiff Connecticut to encourage full census participation after the Presidential Memorandum caused “confusion”).
The Memorandum’s chilling effect on census participation will likely also degrade the census data, harming state and local governments that rely on the data to carry out their public functions. As Dr. Joseph Salvo, Chief Demographer of New York City, explained, “the July 21, 2020 Presidential memorandum is likely to make the Census Bureau resort to less-reliable methods, including statistical imputation, more frequently in immigrant communities than it otherwise would.” Salvo Decl. ¶ 12. Specifically, when individuals fail to participate in the census themselves, the Census Bureau will sometimes rely on “proxy respondents,” like neighbors, landlords, and postal workers. See G LENN W OLFGANG ET AL ., U.S. C ENSUS B UREAU , A NALYSIS OF P ROXY D ATA IN THE A CCURACY AND C OVERAGE E VALUATION 1 (2003), https:// www.census.gov/pred/www/rpts/O.5.PDF. Reliance on proxy responses “degrade[s] the quality of the data” and its usability, since proxy respondents often leave some questions unanswered and report information less accurately than household respondents. Brower Decl. ¶¶ 12-13 (discussing, for example, the phenomenon of “age heaping” where data on the age of individuals tends to be reported in numbers ending in 5 or 0 when a proxy is the respondent because the proxy merely estimates the age of the individual). Further, if census data are not available through proxy responses, demographers are forced to resort to data imputation, which itself is reliable only when calculated using a sufficiently high self-response rate. See ECF No. 76-21 (“Hardcastle Decl.”), ¶ 5. Lower response rates also increase the margins of error in statistical calculations, degrading the utility of census response data and restricting Plaintiffs’ ability to rely on the data for, inter alia , governmental planning purposes. See ECF No. 76-25 (“Kaneff Decl.”), ¶¶ 3-5.
Indeed, degraded census data jeopardizes various sovereign interests in allocating funds and administering public works through programs that rely on quality census data. Connecticut, for example, relies on accurate characteristic data, meaning data on subgroups within the population, for a wide variety of purposes, including deciding where to locate COVID-19 testing sites, the evaluation of requests for school construction funds, the promulgation of affirmative action plans for state agencies using data-driven goals and benchmarks, effective forecasting for public transit planning, and others. See ECF No. 76-31 (“McCaw Decl.”) ¶¶ 4-7. Similarly, Dr. Salvo explains that “[t]he decennial census is the statistical backbone of our country” and that, like Connecticut, New York City relies on accurate characteristic data about subgroups to make decisions about public health programs and education investments, as well as emergency preparedness planning and provision of targeted services for the elderly. Salvo Decl. ¶¶ 13-17.
Other examples abound in the record. In Monterey County, California, for example, the Department of Social Services is responsible for administering cash and non-cash programs that, among other things, provide supplemental food assistance, California’s Medicaid program, foster care, adoption and aging assistance, and temporary assistance to needy families. ECF No. 76-32 (“Medina Decl.”), ¶ 2. That department relies on accurate census data in making its funding allocation decisions. Id . ¶ 4. Any undercounting of undocumented immigrants caused by the Presidential Memorandum will not only “impact the formulas used for funding allocations” for these basic living assistance programs, but will also result in the loss of federal funding, “which, in turn, will add extra financial burden on local governments, resulting in even fewer available resources to assist families with food, housing, health, and other support and safety net services.” Id .; see also, e.g. , ECF No. 76-33 (“Mohammed Decl.”), ¶¶ 5-6 (describing how the census directly impacts funding for the City of Pittsburgh and “provides the most reliable and complete data for research, decision making and planning in City government”); ECF No. 76-39 (“Rodriguez Decl.”), ¶ 3 (describing how Illinois’s Workforce Innovation and Opportunity Act Program, which provides services to help certain populations overcome barriers to employment, depends on accurate census data to identify the targeted population levels); ECF No. 76-46 (“Sternesky Decl.”), ¶ 5 (“Census data deeply influences the way that [the New Jersey Housing and Mortgage Finance Agency] designs and plans for the allocation of housing funds across the state. For example, the Agency uses income, poverty, employment, housing density, and housing vacancy data from the Census to direct its annual $20 million to $25 million allocation of federal 9% Low-Income Housing Tax Credits (LIHTC). These credits are then used to leverage roughly a ten-fold influx of private investment into equity for development costs to both high-opportunity and high-need areas of New Jersey.”); ECF No. 76-50 (“Wortman Decl.”), ¶¶ 3, 6 (describing how Illinois determines funding for each county based on an “index of need” and how “[u]nderrepresentation of areas with a higher percentage of immigrants will result in disproportionate levels of funding being allocated to counties with less demographic diversity”).
Plaintiff Washington State will also be negatively impacted if it is forced to use inaccurate census data. Washington allocates $200 million “of state shared revenues . . . to counties and cities on a per capita basis annually” and uses decennial census data for its demographic estimates and annual population forecasts. Baldwin Decl. ¶¶ 14, 17. “[B]ad data will certainly lead to inaccurate distribution of funding within Washington, impacting all levels of government for a decade.” Id . ¶ 15. “Poor quality census data will [also] harm Washington’s ability to carry out the population data functions required by law both in the short term and the long term.” Id . ¶ 28. In particular, Washington annually creates a thirty -year population forecast, meaning that the 2020 census data will be used in forecasting until at least the 2050 census data is available, if not longer. See id . ¶ 25. Because “many estimate and forecast models rely on information about changes in trends over time,” “[a]n inaccurate census this year will change the relationships in the data between censuses and make all future estimates and forecasts based on these trends less accurate.” Id .
Finally, the undisputed facts in the record also reflect that judicial relief invalidating the Presidential Memorandum would likely reduce the confusion felt by immigrant communities and therefore alleviate some of the injuries being felt by Plaintiffs. For example, Plaintiff FIEL anticipates that “a court order that stops the exclusion of undocumented immigrants from the census would make [its] efforts to encourage census participation easier by allowing [FIEL] to clarify the confusion and help ease the fear caused by” the Presidential Memorandum, and that “it would take FIEL less time and fewer resources to convince” the community “to participate in the census.” Espinosa Supp. Decl. ¶ 3. Relief would also help Plaintiff MRNY “conduct more efficient and effective census outreach” because MRNY could clarify to community members that everyone should, in fact, be counted. ECF No. 194-4 (“Oshiro Supp. Decl.”), ¶ 5. And relief from this Court would also allow Plaintiff Ahri to “publicize the Court’s order to encourage [its] community to open their doors to census outreach workers, rather than hiding out of confusion or fear and avoiding the census completely.” ECF No. 194-5 (“Seon Supp. Decl.”), ¶¶ 6-7.
C. Standing Analysis
As noted, Plaintiffs allege two types of harm: apportionment harms stemming directly
from the exclusion of illegal aliens from the apportionment base and harms caused by the
deterrent effect on census participation. We have considerable doubt that the former suffices to
establish jurisdiction. To be sure, if any Plaintiff could show that, as a result of the Presidential
Memorandum, it was likely to lose one or more seats in the House of Representatives, it would
surely have standing.
See, e.g.
,
House of Representatives
,
Ultimately, however, we need not, and do not, decide the issue because we conclude that
Plaintiffs’ second theory of harm — that the Presidential Memorandum will have and, indeed, is
already having, an effect on the census count itself — suffices to establish standing. Critically,
this theory of harm does not depend on what, if anything, the Secretary does
in the future
to
implement the President’s mandate in the Presidential Memorandum. Instead, it is based on
Plaintiffs’ undisputed evidence that the Presidential Memorandum is affecting the census count
in the present
. That is, while the apportionment harms may well be too remote and hypothetical
to support standing, the harms to the census count are “certainly impending” and do not depend
on “a highly attenuated chain of possibilities.”
Clapper
,
Defendants’ vastly overstate Plaintiffs’ burden. The law does not require Plaintiffs to
submit a randomized control trial or other rigorous statistical analysis demonstrating beyond
peradventure that there are people who would have participated in the census but for the
Presidential Memorandum and who would participate again if we were to grant Plaintiffs the
relief they seek. Nor do Plaintiffs need to submit declarations specifically identifying such
people, let alone submit declarations from such people. Instead, Plaintiffs need only demonstrate
that “there is no genuine dispute as to any” fact material to the standing analysis. Fed. R. Civ. P.
56(a). Notably, in determining whether this standard has been met, we may rely not only on the
declarations submitted by Plaintiffs in support of their motion, but also on common sense, basic
economics, and reasonable inferences.
See, e.g.
,
Friends of the Earth
,
Requiring Plaintiffs to do more would be particularly inappropriate here for two reasons. First, “the integrity of the census is a matter of national importance. As noted, the population count has massive and lasting consequences. And it occurs only once a decade, with no possibility of a do-over if it turns out to be flawed.” New York v. Dep’t of Commerce , 351 F. Supp. 3d at 517; see Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, 1998 (“1998 Appropriations Act”), § 209(a)(8), Pub. L. No. 105- 119, 111 Stat. 2440, 2480-81 (1997) (“Congress finds that . . . the decennial enumeration of the population is a complex and vast undertaking, and if such enumeration is conducted in a manner that does not comply with the requirements of the Constitution or laws of the United States, it would be impracticable for the States to obtain, and the courts of the United States to provide, meaningful relief after such enumeration has been conducted.”). Second, Defendants’ own conduct has forced Plaintiffs’ hands. That is, for reasons that are unclear, the President waited until July 21, 2020, when the census was in full swing, to issue his Presidential Memorandum. Compounding matters, Defendants announced less than two weeks later that they were ending the census earlier than previously planned. The combination of the two meant that Plaintiffs had to rush to court and seek immediate relief; had they waited to develop more rigorous proof of their standing, their arguments about harms to the census count itself would have become moot. Between the sheer enormity of what is at stake and the fact that Defendants’ own conduct gave Plaintiffs only a narrow window in which to seek effective relief, it would be the height of unfairness to hold Plaintiffs to the heightened burden of proof that Defendants endorse.
In light of the undisputed facts in the record, common sense, and basic economics, we are
satisfied that — with their second theory of harm — Plaintiffs adequately show injury in fact,
traceability, and redressability and that we have before us an actual case or controversy “of the
sort traditionally amenable to, and resolved by, the judicial process.”
Steel Co.
,
1. Injury in Fact
To begin, Plaintiffs have proved that, in the wake of the Presidential Memorandum, some number of people will not participate in, and thus not be counted in, the census. As of August 3, 2020 — the day the Census Bureau announced that field operations would end a month earlier than previously planned, and approximately two weeks after the Presidential Memorandum was issued — the Census Bureau had counted only about sixty-three percent of households in the 2020 census. See Statement from U.S. Census Bureau Director Steven Dillingham: Delivering a Complete and Accurate 2020 Census Count , U.S. C ENSUS B UREAU (Aug. 3, 2020), https://www. census.gov/newsroom/press-releases/2020/delivering-complete-accurate-count.html. Many of those not counted are undoubtedly in the “hard to count” population, which includes immigrant and Hispanic populations as well as illegal aliens. See New York v. Dep’t of Commerce , 351 F. Supp. 3d at 577. The record in the citizenship question litigation and the declarations here make clear that this population is even “harder” to count during this census due to widespread concerns, fueled by the policies and rhetoric of this Administration, that census data will be used for immigration enforcement purposes. See id. at 562, 579-83; Colón Decl. ¶ 11; Oshiro Decl. ¶¶ 12, 14; Seon Decl. ¶ 16; Barreto Decl. ¶¶ 60-62. Plaintiffs’ uncontested declarations and common sense indicate that the Presidential Memorandum has compounded, and will compound, these concerns, and that some number of people in these communities will choose not to participate in the census and take steps to avoid being counted. See, e.g. , Cullinane Decl. ¶ 8; Espinosa Supp. Decl. ¶ 5. To be sure, on the present record, the Court cannot calculate with precision the number of people that will be so affected. But there is no doubt that that number is greater than zero, and there is a substantial likelihood that an appreciable number of people will be dissuaded from participating in the census. See Barreto Decl. ¶¶ 60-65.
From these ongoing and direct effects on the census flow several forms of injury to
Plaintiffs and their members or citizens. First, insofar as Plaintiffs include or represent high
concentrations of immigrant and Hispanic populations, the effects on the census undoubtedly
create a risk of a net differential undercount that could result in the loss of political power and
federal funds, two classic forms of Article III injury.
See New York v. Dep’t of Commerce
, 351
F. Supp. 3d at 607-08;
Carey v. Klutznick
,
a. Degradation of Census Data
First, if a portion of the population does not participate in the census count, it will
inevitably degrade the quality and accuracy of census data, even if only at the subgroup or local
level. Salvo Decl. ¶¶ 8-12. That is particularly true if, as is the case here, the people who are not
counted are not evenly distributed across the population, but are concentrated, either
geographically or demographically.
See
Barreto Decl. ¶ 83; Thompson Decl. ¶¶ 15-17, 23. The
degradation of census data, in turn, harms the Governmental Plaintiffs’ ability to allocate
resources, such as educational and public health resources, efficiently and effectively.
See
McCaw Decl. ¶¶ 3-6; Medina Decl. ¶¶ 2-4; Baldwin Decl. ¶¶ 15-28. Separate and apart from
that, it harms confidence in the census data.
See
Kaneff Decl. ¶ 5 (“The lower the response rate,
the larger the margin of error in the demographic characteristics.”). Crucially, these harms will
occur
whether or not there is a net differential undercount
— meaning that this theory of injury
does not depend on connecting the deterrent effect of the Presidential Memorandum on
immigrant households and the like to a net differential undercount of people who live in such
households.
See New York v. Dep’t of Commerce
,
As explained in
New York v. Department of Commerce
, the degradation of census data is
a legally cognizable form of injury sufficient to support standing.
See
Meanwhile, by virtue of the Constitution and the Census Act, it is, of course, the federal government’s job to collect and distribute accurate federal decennial census data. See U.S.
Const. art. I, § 2, cl. 3;
see also Evans
,
An example may be helpful in illustrating the point. Suppose a State were to premise
certain of its policies on a person’s lawful presence in the United States — for example, suppose
that it chose to deny certain benefits to undocumented immigrants or required its law-
enforcement officials to inquire into the immigration status of any person detained in state
custody for any reason. “The accepted way” for States “to perform [such] status checks” — and
surely the most reliable — is to contact the DHS’s Immigration and Customs Enforcement
(“ICE”), the federal agency that accepts and responds to such inquiries from interested States.
Arizona v. United States
,
Indeed, ample case law supports the proposition that a State has a strong sovereign
interest in conducting its own policy, the burdening of which causes an injury in fact for Article
III purposes. One such sovereign interest is a State’s “exercise of sovereign power over
individuals and entities within [its] jurisdiction — this involves the power to create and enforce a
legal code, both civil and criminal.”
Alfred L. Snapp & Son
,
of the terms under which it participates in the federal system,”
Alfred L. Snapp & Son
, 458 U.S.
at 607-08;
cf. Maine v. Taylor
,
The Fifth Circuit’s decision in
Texas v. United States
,
Like the state plaintiffs in
Texas
, many Governmental Plaintiffs here have enacted their
reliance on federal census data into law — in some cases, as noted, even into their constitutions.
Moreover, as in
Texas
, “there is no allegation,” let alone proof, that those jurisdictions enacted
their laws or ratified their constitutions “to manufacture standing” in these cases.
Id.
at 159. If
the census data is degraded (or even perceived to be degraded), these Plaintiffs will be subjected
to a forced choice: They can use the degraded data, resulting in worse policy; they can spend
money to compensate for the damage; or they can change their laws to relieve themselves of the
legal obligation to use federal census data in making and enforcing their laws (which would
presumably necessitate the expenditure of additional resources to collect data of their own
anyway). Such “pressure[] to change state law constitutes an injury” within the meaning of
Article III.
Texas
,
b. Diversion of Resources
Additionally, the risk that some hard to count population will not participate in census
results in another form of injury: the diversion of resources. In
Havens Realty Corp. v. Coleman
,
As they did in
New York v. U.S. Department of Commerce
, Defendants appear to suggest
that
Havens Realty
recognizes Article III injuries arising from organizational expenditures only
where those expenditures are made in response to injuries that are themselves sufficiently
imminent and impending to satisfy Article III.
See
Defs.’ Reply 3; Oral Arg. Tr. 42-43;
see also New York v. Dep’t of Commerce
,
Plaintiffs satisfy these standards. First, Defendants do not dispute, and the Court has
little trouble concluding, that the impairment alleged by NGO Plaintiffs goes to their core
activities.
See, e.g.
,
Common Cause Ind. v. Lawson
,
Second, Plaintiffs’ uncontested declarations demonstrate that the NGO Plaintiffs have diverted resources in response to the Presidential Memorandum’s chilling effects on participation in the census and the risks that poses for their members and their core activities. See Choi Decl. ¶¶ 14-27; Espinosa Decl. ¶¶ 14-17; Khalaf Decl. ¶¶ 8-16; Oshiro Decl. ¶¶ 15-17; Seon Decl. ¶¶ 17-19; Torres Decl. ¶¶ 2, 21-23; ECF No. 149-1 (“Awadeh Decl.”), ¶¶ 4-5; Espinosa Supp. Decl. ¶¶ 7-8; Oshiro Supp. Decl. ¶¶ 2, 4; Seon Supp. Decl. ¶ 4. [10] For example, Steven Choi, the executive director of Plaintiff New York Immigration Coalition (“NYIC”), states that his organization had to develop new messaging and social media campaigns, and issue new member updates and press releases, to counter the Presidential Memorandum’s contradiction of themes that had previously been core to NYIC’s census outreach efforts. Choi Decl. ¶ 17. NYIC expects to increase staff time and spending by twenty percent over previously anticipated levels to achieve its census outreach and advocacy goals. See id. ¶ 21. Similarly, Plaintiff Ahri had to develop entirely new outreach materials, train staffers with new scripts, and respond to media inquiries; it expects to increase staff time and spending devoted to these efforts by fifteen percent as a result of the Presidential Memorandum. See Seon Decl. ¶¶ 17-19. Meanwhile, Plaintiffs ADC and ADRCI anticipate increasing staff time and spending devoted to Census efforts by approximately twenty-five percent as a result of the Memorandum, see Khalaf Decl. ¶ 14, and Plaintiff FIEL “anticipates having to divert approximately $5,000 from other mission critical programs and services to the 2020 Census education and outreach as a result of the Presidential Memorandum,” Espinosa Decl. ¶ 15.
These resource diversions may not be large in absolute terms, but they constitute a
“perceptible impairment” of the NGO Plaintiffs’ activities and thus qualify as injuries in fact.
New York v. U.S. Dep’t of Homeland Sec.
,
2. Traceability
Next, we have little trouble finding that these injuries in fact are fairly traceable to the
Presidential Memorandum. Once again, the uncontested record and common sense satisfy
Plaintiffs’ burden. Plaintiffs demonstrate that the Presidential Memorandum’s chilling effect on
immigrant census participation is at least partially responsible for a degradation in the quality of
census data.
See, e.g.
, ECF No. 76-24 (“Jimenez Decl.”), ¶¶ 3-5 (explaining that the
Memorandum’s deterrence effect on immigrant household census participation will cause an
undercount and a subsequent reduction in federal healthcare, infrastructure, and education
funding for Plaintiff Monterey County); Salvo Decl. ¶ 12 (noting that the Presidential
Memorandum “is likely to make the Census Bureau resort to less-reliable methods, including
statistical imputation, more frequently in immigrant communities than it otherwise would” which
will “result[] in poorer quality (less accurate) data both in terms of demographic characteristics
as well as the actual count of persons”). NGO Plaintiffs have also made clear that the
Presidential Memorandum is responsible for their diversion of resources; in other words, they are
expending resources they would not otherwise precisely because of the Presidential
Memorandum.
See, e.g.
, Choi Decl. ¶¶ 20-21; Khalaf Decl. ¶¶ 14-15; Seon Decl. ¶ 17; Oshiro
Supp. Decl. ¶¶ 3-4; Torres Decl. ¶¶ 22-23; Espinosa Supp. Decl. ¶ 4. This undisputed evidence
satisfies Plaintiffs’ burden to demonstrate the “
de facto
causality” that Article III demands.
Dep’t of Commerce v. New York
,
In arguing otherwise, Defendants point out that Plaintiffs’ theory of causation relies in part on the intervening actions of third-party actors, such as Spanish-language media disseminating information about the Presidential Memorandum. See Defs.’ Mem. 16. “It makes little sense,” they argue, “for Plaintiffs to attribute whatever harm is caused by those independent actors to the Memorandum itself, particularly if their messages convey the incorrect impression that the Memorandum increases the risk of individuals’ information being linked to immigration records and those individuals facing immigration enforcement.” Id. (internal quotation marks and alterations omitted). More broadly, they assert that Plaintiffs’ injuries are traceable to the “macro environment” of fear in the immigrant and Hispanic communities that predated the Presidential Memorandum, not to the Memorandum itself. Id. at 15-19.
These arguments are unpersuasive. For one thing, they ignore entirely Plaintiffs’ evidence that the Presidential Memorandum has deterred, and will continue to deter, people from participating in the census because they conclude “that they don’t see a benefit in filling out the census form if they will not be counted.” Pls.’ Mem. 43 (internal quotation marks and alterations omitted); see, e.g. , Choi Decl. ¶ 17; Cullinane Decl. ¶ 9; Matos Decl. ¶¶ 11, 13; Oshiro Decl. ¶¶ 10-12; ECF No. 76-38 (“Roche Decl.”), ¶ 9; Torres Decl. ¶ 19; Espinosa Supp. Decl. ¶¶ 5-6. For such people, the chain of causation between the Presidential Memorandum and non- participation has only a single link. Thus, Plaintiffs need not and do not rely on the dissemination of information by third parties to establish that certain illegal aliens will plausibly — even rationally — decide not to participate based directly on a correct understanding of the Presidential Memorandum’s import.
Second, as noted above, the Supreme Court has long made clear that the defendant’s
conduct need not be “the very last step in the chain of causation.”
Bennett
,
In light of these principles and cases, Defendants’ arguments are unpersuasive. At the
end of the day, they are little more than a rehash of Defendants’ arguments in the citizenship
question litigation, which were rejected. There, like here, Defendants argued that Plaintiffs’
injuries were not “fairly traceable” to their conduct because the injuries depended on the
intervening acts of third parties influenced by misinformation — namely, that the federal
government could use their census answers for law enforcement and immigration enforcement
purposes.
New York v. Dep’t of Commerce
,
3. Redressability
Finally, we conclude that Plaintiffs satisfy the redressability requirement as well. To be
sure, Plaintiffs have not proved — and perhaps could not prove — that a favorable ruling would
lead everyone who has decided, or will decide, not to participate in the census as a result of the
Presidential Memorandum to change course. But Plaintiffs’ burden is not to show that a
favorable court ruling would fully remedy the injuries that they have suffered or will suffer.
Instead, they need show only that the “risk [of harm] would be reduced
to some extent
if [they]
receive[] the relief they seek.”
Massachusetts v. E.P.A.
,
The Supreme Court’s decision in
Massachusetts v. E.P.A.
is instructive. There,
Massachusetts and other States challenged the EPA’s decision not to regulate four greenhouse
gases within the United States. On appeal, the Supreme Court held that the States had standing
to challenge the EPA’s decision based on their showing, through “unchallenged affidavits,” that
climate change was caused by greenhouse gases and caused various harms.
While it may be true that regulating motor-vehicle emissions will not by itself reverse global warming, it by no means follows that we lack jurisdiction to decide whether EPA has a duty to take steps to slow or reduce it. Because of the enormity of the potential consequences associated with manmade climate change, the fact that the effectiveness of a remedy might be delayed . . . is essentially irrelevant. Nor is it dispositive that developing countries . . . are poised to increase greenhouse gas emissions substantially over the next century: A reduction in domestic emissions would slow the pace of global emissions increases, no matter what happens elsewhere.
Id. at 525-26 (citation and footnote omitted). Notably, the Court did not demand empirical proof that the remedy sought would have any marginal effect on global warming. The causal connection between greenhouse gases and climate change, combined with the EPA’s “ardent support for various voluntary emission-reduction programs” (with which the “EPA would presumably not bother . . . if it thought emissions reductions would have no discernable impact on future global warming”), was enough. Id. at 526 (internal quotation marks omitted). Because the relief sought would reduce the risk of injury “to some extent,” the States had standing. Id.
Here too, Plaintiffs’ uncontested affidavits show that the relief they seek — a declaration
that the Presidential Memorandum is unlawful and an injunction barring any effort to implement
it — would reduce “to some extent” their risk of suffering injuries relating to the census. If
anything, the record here provides even more support for a finding of redressability than the
record in
Massachusetts v. E.P.A.
did. First, as discussed above, Plaintiffs have provided proof
that there are likely people who have decided, or will decide, not to participate in the census for
the simple reason that, under the Presidential Memorandum, they will not count for
apportionment purposes. A court order invalidating the Presidential Memorandum would redress
that harm in a straightforward manner.
See, e.g.
,
Carpenters Indus. Council
,
Only two of Defendants’ counterarguments warrant further discussion. First, Defendants
maintain that Plaintiffs’ census-related injuries would not be remedied by a ruling in Plaintiffs’
favor because the alleged “‘macro environment’ of mistrust around immigration” would remain.
Defs.’ Mem. 19. But that is akin to the argument the EPA made, and the Supreme Court
rejected, in
Massachusetts v. E.P.A.
: that granting relief would not remedy the States’ injuries
because there were other, independent causes for those injuries — namely, the emissions of
developing nations — that would persist.
See
Second, Defendants suggest that Plaintiffs cannot show redressability because “appellate
review would likely last well past the end of the conduct of the census.” Defs.’ Reply 4.
Conspicuously, however, Defendants cite no authority for the novel proposition that the
availability of higher court review and the possibility of reversal can render a dispute
nonjusticiable. Taken to its logical conclusion, that argument would suggest that a plaintiff
could never obtain emergency relief in the face of a looming deadline. Far from rejecting such
claims, courts routinely hear them on an expedited basis (as we have done here).
See, e.g.
,
League of Women Voters of N. Carolina v. North Carolina
,
4. Conclusion
In the final analysis, “the gist of the question of standing” (and constitutional ripeness)
“is whether [the plaintiffs] have ‘such a personal stake in the outcome of the controversy as to
assure that concrete adverseness which sharpens the presentation of issues upon which the court
so largely depends for illumination.’”
Massachusetts v. E.P.A.
,
D. Prudential Ripeness
As noted, Defendants also invoke the prudential ripeness doctrine.
See
Defs.’ Mem. 6-
10; Defs.’ Reply 1-2. Unlike standing and constitutional ripeness, prudential ripeness does not
relate to the Court’s jurisdiction. Instead, “when a court declares that a case is not prudentially
ripe, it means that the case will be
better
decided later and that the parties will not have
constitutional rights undermined by the delay.”
Simmonds
,
“To determine whether to abstain from a case on prudential ripeness grounds, we proceed
with a two-step inquiry,” evaluating “both the fitness of the issues for judicial decision and the
hardship to the parties of withholding court consideration.”
Nat’l Org. for Marriage
, 714 F.3d at
691 (internal quotation marks omitted). The first step of the inquiry “is concerned with whether
the issues sought to be adjudicated are contingent on future events or may never occur.”
N.Y.
Civil Liberties Union v. Grandeau
,
Considering these factors here, we conclude that the test for prudential ripeness is “easily
satisfied.”
Susan B. Anthony List
,
Thus, we conclude there is no basis to defer consideration of Plaintiffs’ claims on
ripeness ground. The fact that the Presidential Memorandum contains something akin to a
“savings clause” — namely, that it is “the policy of the United States to exclude” illegal aliens
from the apportionment base “
to the maximum extent feasible and consistent with the discretion
delegated to the executive branch
,” Presidential Memorandum,
Whether doing so would be a lawful exercise of the President’s authority is a pure legal question that can be addressed now.
THE MERITS In their motion, Plaintiffs seek relief on two grounds: first, they argue that the Presidential Memorandum violates Article I and the Fourteenth Amendment to the Constitution; and second, they contend that it constitutes an ultra vires violation of the laws governing the census and apportionment. Pls.’ Mem. 1-2. On the latter front, Plaintiffs insist that the Presidential Memorandum exceeds the powers delegated by Congress in 13 U.S.C. § 141 and 2 U.S.C. § 2a in at least two ways: (1) because it contemplates calculating apportionment using tabulations other than those produced by the census and (2) because it seeks to exclude illegal aliens from the apportionment base regardless of whether they are “persons in” a “State” as those terms are used in Section 2a(a). Id . at 27-36.
Although Plaintiffs urge us to decide both their constitutional claims and their statutory
claims, and the parties focus mostly on the constitutional issues, courts have long been
admonished not to “pass upon a constitutional question although properly presented by the
record, if there is also present some other ground upon which the case may be disposed of.”
Ashwander v. TVA,
McDaniel
,
Accordingly, we begin — and, as it turns out, end — with Plaintiffs’ statutory claims. In doing
so, of course, “we start with the text of the statute.”
Babb v. Wilkie
,
A. Apportionment Must Be Based on the Results of the Census Alone
Plaintiffs’ first argument is that the Presidential Memorandum violates the statutes
governing the census and apportionment by producing apportionment figures that are not based
solely on the decennial census. This argument relies on the interplay between Section 141 and
Section 2a. Subsection (a) of the former requires the Secretary to conduct the “decennial census
of population.” 13 U.S.C. § 141(a). Subsection (b) then requires the Secretary to report to the
President “[t]he tabulation of total population by States under subsection (a) of this section” —
that is,
under
the “decennial census” — “as required for the apportionment of Representatives in
Congress.”
Id.
§ 141(b). Section 2a(a), in turn, requires the President to transmit to 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 . . . by the method known as the method of equal proportions . . . .” 2 U.S.C.
§ 2a(a). By its terms, therefore, Section 141 calls for the Secretary to report a single set of
numbers — “[t]he tabulation of total population by States” under the “decennial census” — to
the President. And Section 2a, in turn, “expressly require[s] the President to use . . . the data
from the ‘decennial census’” in determining apportionment.
Franklin
,
Legislative history and the longstanding understanding of the Executive Branch itself confirm that the Secretary’s “tabulation,” and the President’s apportionment calculations, must be based on decennial census data alone. Significantly, the statutes first took their current form in 1929, after a decade-long stalemate over the method for calculating the reapportionment following the 1920 census. See id. at 791-92. Congress responded to this problem by creating an “automatic reapportionment” scheme that would be “virtually self-executing.” Id. at 792. In particular, the scheme created an “automatic connection between the census and the reapportionment”; indeed, that was “ the key innovation of the Act.” Id. at 809 (Stevens, J., concurring in part and concurring in the judgment) (emphasis added). The Senate Report accompanying the bill explained in reference to the next census:
The census would be taken in November, 1929. One year later, with these figures in hand , the President would report the census figures , together with a table showing how, under these figures , the House would be apportioned . . . pursuant to a purely ministerial and mathematical formula . . . . Precisely the same process would protect reapportionment in each subsequent decennium.
S. Rep. No. 71-2, at 4 (1929). Along similar lines, the House Report explained that, under the
bill, “the House is reapportioned in accordance with the tabulation transmitted by the Secretary
of Commerce . . . ; the tabulations transmitted to Congress are on the basis of the 1930 census
. . . .” H. Rep. No. 70-2010, at 4 (1929);
see also id.
at 7 (explaining that the Secretary, to whom
the bill also originally assigned the task of reapportionment later assigned to the President, “is
left with no discretionary power. He must use absolutely, without deviation, the population of
each State
as gathered and reported by the Director of the Census
.” (emphasis added)).
[13]
Similarly, its position in this litigation notwithstanding, the Department of Justice (the
“Justice Department” or “DOJ”) has long adhered to the view that the President’s statement to
Congress regarding apportionment has to be based solely on the tabulation of total population
produced by the census. As the Justice Department explained more than forty years ago in
Federation for American Immigration Reform (FAIR) v. Klutznick
, “every inhabitant of a state
the Census counts is included in the apportionment base. . . . The total resident population of the
states is the apportionment base.” Defs.’ Reply Mem. & Opp’n at 11,
In short, this history confirms our reading of the statutes’ plain terms: The Secretary is required to report a single set of figures to the President — namely, “[t]he tabulation of total population by States” under the “decennial census” — and the President is then required to use those same figures to determine apportionment using the method of equal proportions.
The Presidential Memorandum deviates from, and thus violates, these statutory
requirements. Whereas the statute calls for the Secretary to include only the census figures in his
report to the President, the Presidential Memorandum mandates that the Secretary provide a
second set of figures as well: namely, the population of each State “exclud[ing]” illegal aliens.
Presidential Memorandum,
In arguing otherwise, Defendants rely almost exclusively on the Supreme Court’s
decision in
Franklin
,
see
Defs.’ Mem. 40-42; Oral Arg. Tr. 48-54, but that reliance is misplaced.
In
Franklin
, the plaintiffs brought two discrete challenges, one a constitutional challenge to the
formula used in connection with reapportionment and one a challenge under the Constitution and
the APA to the conduct of the census — specifically, to the Census Bureau’s decision to count
federal employees serving overseas as residents of the State listed as their home of record in their
personnel files.
See Massachusetts v. Mosbacher
,
While addressing the question of whether the plaintiffs could bring a claim under the APA, the Court described the interplay between Section 2a and Section 141:
After receiving the Secretary’s report, the President is to “transmit to the Congress a statement showing the whole number of persons in each State . . . as ascertained under the . . . decennial census of the population.” 2 U.S.C. § 2a(a). Section 2a does not expressly require the President to use the data in the Secretary’s report, but, rather, the data from the “decennial census.” There is no statute forbidding amendment of the “decennial census” itself after the Secretary submits the report to the President. For potential litigants, therefore, the “decennial census” still presents a moving target, even after the Secretary reports to the President. . . . Moreover, there is no statute that rules out an instruction by the President to the Secretary to reform the census, even after the data are submitted to him. It is not until the President submits the information to Congress that the target stops moving, because only then are the States entitled by § 2a to a particular number of Representatives.
Defendants seize on this language to argue that the President has discretion to define who should be considered inhabitants — or “persons in each State,” 2 U.S.C. § 2a(a); see U.S. Const. Art. I § 2, cl. 3 — for purposes of the census. Presidential Memorandum, 85 Fed. Reg. at 44,679; see Defs.’ Mem. 40-42; Def. Reply 9-10; Oral Arg. Tr. 47. That may or may not be true — we address it below — but it is beside the point for present purposes. Franklin does not suggest, let alone hold, that the President has authority to use something other than the census when calculating the reapportionment; indeed, the Court did not even consider the plaintiffs’ challenge to the apportionment. At most, Franklin establishes that the President retains his “usual superintendent role” with respect to the conduct of the census — and can direct the Secretary to make “policy judgments that result in ‘the decennial census .’” Id. at 799-800 (emphasis added); see also id. at 797-98 (referring to “amendment of the ‘decennial census’ itself” and “instruction by the President to the Secretary to reform the census”). [15] But by [15] Franklin Thus, defense counsel is wrong in suggesting that the Court blessed the use of a tabulation that was based on both the census and “separate records outside the census.” Oral Arg. Tr. 52. The overseas personnel were counted as part of the census itself, resulting in a single “tabulation of total population by States” under the “decennial census.” 13 U.S.C.
§ 141(a)-(b). That they were counted using administrative records rather than a questionnaire is Defendants’ own admission, that is not what the President did here. See, e.g. , Joint Pre- Conference Ltr. 5 (“Plaintiffs are not challenging some procedure that will be used in the actual census, but an apportionment number that will be chosen by the President after the census is complete.”); Defs.’ Mem. 12 (“[T]he Memorandum does not affect how the Census Bureau is conducting its remaining enumeration operations . . . .”); ECF No. 120 (Decl. of Albert E. Fontenot, Jr.) ¶ 12 (“The Presidential Memorandum . . . has had no impact on . . . the Census Bureau’s commitment to count each person in their usual place of residence, as defined in the [Residence Rule].”).
In short, contrary to Defendants’ arguments, the statutory scheme enacted by Congress does not give the President authority to “choose” any set of numbers he wants “to plug into the ‘method of equal proportions.’” Defs.’ Mem. 42. Instead, Congress mandated that the President use a specific set of numbers — those produced by the decennial census itself — for purposes of the reapportionment. By deviating from that mandate, the Presidential Memorandum exceeds the authority of the President and constitutes an ultra vires violation of the statutes.
B. The Apportionment Base Cannot Exclude Illegal Aliens Who Reside in a State
The Presidential Memorandum also deviates from Section 2a(a) in defining “the whole number of persons in each State” to categorically exclude illegal aliens residing in each State. Once again, we begin with the plain language of the statute. Defendants do not dispute — in the Presidential Memorandum or in their briefs — that illegal aliens are “persons” within the meaning of Section 2a(a), and for good reason. The ordinary meaning of the word “person” is “human” or “individual” and surely includes citizens and non-citizens alike. See Plyler v.
of no moment, as Section 141(a) broadly delegates to the Secretary the authority to conduct the census “in such form . . . as he may determine.” Id. § 141(a).
Doe
,
Instead, Defendants hang their hats on the four-word phrase “persons in each State.”
Presidential Memorandum,
The Presidential Memorandum provides two examples to support its conclusion that
“[t]he discretion delegated to the executive branch to determine who qualifies as an ‘inhabitant’
includes authority to exclude from the apportionment base aliens who are not in a lawful
immigration status,” Presidential Memorandum,
Defendants are on no firmer ground in arguing that illegal aliens can be excluded from
“the whole number of persons in each State,” as that phrase is used in Section 2a, because they
“may be removed from the country at any time.” Defs.’ Mem. 39. A person living in a State but
facing future removal is no less a “person[] in that State,” Defs.’ Reply 4 (internal quotation
marks and alteration omitted), than someone living in the State without the prospect of removal.
Moreover, many people in immigration custody or removal proceedings actually have
lawful
immigration status,
see, e.g.
,
Ragbir v. Homan
,
Once again, legislative history and settled practice confirm our conclusion that “persons
in each State” turns solely on residency, without regard for legal status. In looking to legislative
history, we look not to the history surrounding the framing of the Constitution or the
Reconstruction Amendments, even though the words in the statute mirror those in Article I and
the Fourteenth Amendment. Instead, we look to 1929, when Section 2a was enacted and the
words “whole number of persons in each State” entered the statutory lexicon.
See
Act of June
18, 1929, Pub. L. No. 71-13 § 22, 46 Stat. 21, 26. That is because our task is to interpret the
statute itself, and we do so “in accord with the ordinary public meaning of its terms at the time of
its enactment.”
Bostock v. Clayton Cty.
,
Notably, in enacting the 1929 Act that used the phrase “whole number of persons in each State,” the Senate and the House both considered and rejected amendments that would have excluded non-citizens from the apportionment base. See 71 Cong. Rec. 1907 (1929) (Sen.
Sackett proposes amending S.B. 312 to require the President’s statement to Congress to show “the whole number of persons in each State, exclusive of aliens and excluding Indians not taxed”); id. at 2065 (vote on amendment by Sen. Sackett fails); id. at 2360-63 (House adopts alienage exclusion as amendment to the apportionment bill); id. at 2448-2455 (House adopts amendment of Rep. Tilson to remove the previously adopted alienage exclusion). What is more, opposition to these amendments was based not only on a view that “the whole number of persons in each State” should include every resident of each State, without regard to legal status; it was based also on a view that the Constitution mandated inclusion of illegal aliens residing in the United States. Senator David Reed, for instance, voiced support for an amendment excluding illegal aliens from the apportionment base as a matter of policy but opposed it on grounds of constitutionality and consistent practice. “Every Congress that acted on that part of Article I of the original Constitution and every apportionment that was made in reliance upon that article,” he explained, “included all free persons literally. It excluded Indians not taxed and it excluded slaves, but every apportionment inhabitant[] who” was not a “citizen[] w[as] included.” Id. at 1958. “That construction,” he noted then, “has been continuous and consistent.” Id .
Further evidence of the understanding of the phrase “whole number of persons in each State” in Section 2a is revealed by the opinion of the Senate’s legislative counsel on the issue. “That the fourteenth amendment was framed with the intention of including aliens,” he wrote, “is indicated by the rejection by the Congress of proposals to base representation on the number of citizens and on the number of voters.” Id. at 1822. Consistent with that understanding, Congress had always included aliens in the apportionment base:
The practical construction of the constitutional provision by Congress in its apportionment legislation has been uniformly in favor of inclusion of aliens. No exception of noncitizens from the enumeration has been made under any past apportionment. The term “persons” necessarily either includes or excludes aliens; its constitutional meaning can not be changed by Congress; and the fact that it has from the beginning been construed to include aliens should be conclusive if the meaning was open to dispute.
Id . It was “therefore the opinion of [the legislative counsel’s] office that there is no constitutional authority for the enactment of legislation excluding aliens from enumeration for the purposes of apportionment of Representatives among the States.” Id . This prevailing view makes plain that when Congress directed the President to report the “whole number of persons in each State,” it understood the phrase to include all who lived in each State, without regard for legal status, and that it did not grant to the President discretion to do by Memorandum what it could not do by statute. [18]
Not for nothing, until the Presidential Memorandum, the Executive Branch had also
always taken the view that the 1929 Act, if not the Constitution, prohibited exclusion of illegal
aliens from the apportionment base due to legal status alone. In defending against a 1980
challenge to
including
illegal aliens in the apportionment base, for example, the Department of
Justice argued that “[t]he plain language of [the Act] maintains the Constitutional requirement of
counting all inhabitants of the states, legal and illegal, for purposes of apportionment. . . .
Moreover, the long-established practice of both Congress and the Census Bureau of reading the
Constitution to require the counting of illegal aliens for apportionment purposes ratifies this
construction.” Defs.’ Reply Mem. & Opp. Pls.’ Mot. Summ. J. 11,
FAIR
,
In fact, since 1929 (if not before), the consistent view of both political branches has been that Section 2a, if not the Constitution, requires the inclusion of all residents in the apportionment base, without regard for their legal status. When pressed at oral argument to cite “any instance, any support . . . in the historical record” for the proposition that the President has discretion under Section 2a to exclude illegal aliens from the apportionment base, defense counsel came up empty. Oral Arg. Tr. 46 (“We have not been able to identify any.”). With admirable candor, albeit some understatement, he was compelled to concede that “[P]laintiffs’ best argument is history, and that cuts the other way.” Id. at 47.
With neither text nor history on their side, the only thing Defendants have remaining is
their assertion that excluding illegal aliens from the apportionment base is “more consonant with
the principles of representative democracy underpinning our system of Government.”
Presidential Memorandum,
The statutory command to use the “whole number of persons in each State” as the apportionment base does not give the President discretion to exclude illegal aliens on the basis of their legal status, without regard for their residency. In declaring that “it is the policy of the United States” to do so, and commanding the Secretary to take steps to carry out that policy, the Presidential Memorandum deviates from, and thus violates, Section 2a.
C. Conclusion
In sum, the Presidential Memorandum deviates from, and thus violates, the statutory scheme in two independent ways: first, by requiring the Secretary to include in his Section 141(b) report a set of numbers other than “[t]he tabulation of total population by States” under the “decennial census” and contemplating reapportionment based on a set of numbers other than “the whole number of persons in each State . . . as ascertained under the . . . decennial census of the population”; and second, by excluding illegal aliens from the “whole number of persons in each State” that Section 2a(a) requires to be used as the apportionment base.
As Defendants implicitly concede, it follows that Plaintiffs are entitled to summary
judgment on their statutory claims pursuant to the
ultra vires
doctrine, a cause of action that “is
the creation of courts of equity, and reflects a long history of judicial review of illegal executive
action, tracing back to England.”
Armstrong v. Exceptional Child Ctr., Inc.
,
REMEDIES Having granted Plaintiffs summary judgment on their statutory claims, we turn to the issue of remedies. Plaintiffs seek a permanent injunction prohibiting all Defendants — including the President himself — from implementing the Presidential Memorandum and a declaratory judgment that the Presidential Memorandum is unlawful. See Gov’t Pls.’ Compl. 44-45; NGO Pls.’ Compl. 88-89.
A. Injunctive Relief
It is well established that plaintiffs “seeking a permanent injunction must satisfy a four-
factor test before a court may grant such relief.”
eBay Inc. v. MercExchange, L.L.C.
, 547 U.S.
388, 391 (2006). Specifically, they must show: (1) that they have suffered an irreparable injury;
(2) that remedies available at law, such as monetary damages, are inadequate to compensate for
that injury; (3) that, considering the balance of hardships between the plaintiffs and defendants, a
remedy in equity is warranted; and (4) that the public interest would not be disserved by a
permanent injunction.
See id.
But because “the government’s interest is the public interest,”
where, as here, the government is a party, the last two factors merge.
Pursuing Am.’s Greatness
v. FEC
,
Finally, the balance of the hardships and the public interest both favor an injunction.
Indeed, “[t]here is generally no public interest in the perpetuation of unlawful agency action. To
the contrary, there is a substantial public interest in having governmental agencies abide by the
federal laws that govern their existence and operations.”
League of Women Voters of U.S. v.
Newby
,
Moreover, both the Supreme Court’s decision in
Department of Commerce v. House of
Representatives
— affirming the Eastern District of Virginia’s permanent injunction against the
use of statistical sampling to enumerate the population in the 2000 census — and the Second
Circuit’s holding in
Carey
— affirming a preliminary injunction requiring the Census Bureau to
process certain forms and to compare its list of New York City residents against other
government records — confirm that the public interest favors an injunction in these cases.
See
House of Representatives
,
Defendants’ sole claim of hardship is that an injunction would “interfere with the
Bureau’s ongoing process by hindering agency efforts to refine its policies and to apply its
expertise.” Defs.’ Reply 2 (internal quotation marks and alterations omitted).
[19]
They do not
elaborate further, but it is plain that they are not referring to the operations of the census itself
because, as noted above, they repeatedly concede that the Presidential Memorandum does “not in
any way affect the conduct of the actual census.”
Id.
Thus, Defendants must be referring to the
Census Bureau’s ongoing efforts to figure out how, if at all, to implement the President’s
directive in the Presidential Memorandum in time to meet the statutory deadline for the
Secretary’s report to the President.
See
13 U.S.C. § 141(b). But it is against the public interest
to comply with an unlawful directive. And any suggestion that, in the event our decision is
reversed on appeal, granting an injunction would hinder the Census Bureau’s efforts to comply
with the Presidential Memorandum by the deadline are undermined by Defendants’ repeated
[19]
Referencing a point they made in passing in a footnote in their opening brief, Defendants
also argue for the first time in their reply that an injunction prohibiting the Secretary from
transmitting information would violate the Opinions Clause of the Constitution,
see
Defs.’ Reply
11 (citing Defs.’ Mem. 42 n.17), which empowers the President to “require the Opinion, in
writing, of the principal Officer in each of the executive Departments, upon any Subject relating
to the Duties of their respective Offices,” U.S. Const. art. 2, § 2, cl. 1. A party may not raise an
argument in a footnote or for the first time in reply, so we deem the argument to be waived.
See,
e.g.
,
Norton v. Sam’s Club
,
assertions that “an erroneous or invalid apportionment number can be remedied after the fact.” Defs.’ Mem. 48. Finally, any such hardship to Defendants can be mitigated, if not eliminated, by crafting the injunction — as we do below — to bar only the inclusion in the Secretary’s Section 141 report of data concerning the number of illegal aliens in each State and to allow the Census Bureau to continue its research efforts.
Thus, a permanent injunction is warranted. In an exercise of our discretion, however, we
grant injunctive relief against all Defendants other than the President. The parties vigorously
dispute whether and under what circumstances a federal court can grant injunctive relief against
the President.
Compare
Defs.’ Mem. 44-45,
and
Defs.’ Reply 14-15,
with
Pls.’ Reply 27 & n.13.
At a minimum, however, it is plain that the “grant of injunctive relief against the President
himself is extraordinary, and should . . . raise[] judicial eyebrows.”
Franklin
,
Accordingly, the Court enjoins all Defendants other than the President from including in
the Secretary’s report to the President pursuant to Section 141(b) any “information permitting the
President . . . to exercise the President’s discretion to carry out the policy set forth in section 2”
of the Presidential Memorandum — that is, any information concerning the number of aliens in
each State “who are not in a lawful immigration status under the Immigration and Nationality
Act.” Presidential Memorandum,
B. Declaratory Relief
In addition, we grant Plaintiffs’ request for declaratory relief. The Declaratory Judgment
Act vests federal courts with discretion to “declare the rights and other legal relations of any
interested party seeking such declaration, whether or not further relief is or could be sought.” 28
U.S.C. § 2201(a);
see Wilton v. Seven Falls Co.
,
In our view, a declaration that the Presidential Memorandum is unlawful “would serve a
useful purpose here, settle the legal issues involved, finalize the controversy, and offer
[Plaintiffs] relief from uncertainty.”
Niagara Mohawk Power Corp. v. Hudson River-Black
River Regulating Dist.
,
CONCLUSION
There is no dispute that the President has “accustomed supervisory powers over his
executive officers,”
Franklin
,
The Clerk of Court is directed to terminate ECF Nos. 74 and 117 and to close this case. SO ORDERED.
Dated: September 10, 2020 _______________/s/_________________
New York, New York RICHARD C. WESLEY United States Circuit Judge _______________/s/_________________ PETER W. HALL United States Circuit Judge _______________/s/_________________ JESSE M. FURMAN United States District Judge
Notes
[1] Unless otherwise noted, all docket references are to 20-CV-5770.
[2] We discuss facts relevant to the issues of standing and ripeness below.
[3] For practical purposes, the “Indians not taxed” proviso was rendered moot by the Indian Citizenship Act of 1924, Pub. L. No. 68-175, 43 Stat. 253 (codified as amended at 8 U.S.C. § 1401(b)), which declared that all Native Americans born in the United States are citizens.
[4] Although less relevant here, accurate census data is also critical to others, including scholars and private-sector businesses. See, e.g. , Br. of Amici Curiae 16 Businesses & Business Organizations at 3, ECF No. 103-1 (“Businesses Amicus”) (“The Census provides critical data that informs decision-making in both the private and public sectors. . . . Consequently, government action that threatens the accuracy of Census data directly harms the businesses nationwide that rely on that data.”); M ARGO J. A NDERSON , T HE A MERICAN C ENSUS : A S OCIAL H ISTORY 260-61 (2d ed. 2015) (describing how “[s]ocial scientists in university settings, in businesses, or in stand-alone research organization [have become] the market” for census data in the modern era). For instance, businesses rely on census data “to make a variety of decisions, including where to put new brick-and-mortar locations, how to market their products, and how to predict which products will be successful in a given market. . . . All of these things depend on the availability of accurate Census data.” Businesses Amicus 2.
[5] See, e.g. , U.S. C ENSUS B UREAU , O PERATIONAL P RESS B RIEFING – 2020 C ENSUS U PDATE 21 (July 8, 2020), https://www.census.gov/content/dam/Census/newsroom/press-kits/2020/news- briefing-program-transcript-july8.pdf (statement of Albert Fontenot, Assoc. Dir. for Decennial Census Programs) (explaining that the Bureau was “past the window of being able” to produce the apportionment count by December 31, 2020); see also, e.g. , Nat’l Conf. of Am. Indians, 2020 Census Webinar: American Indian/Alaska Native, Y OU T UBE (May 26, 2020), https://www. youtube.com/watch?v=F6IyJMtDDgY&feature=youtu.be&t=4689 (statement of Tim Olson, Assoc. Dir. For Field Operations) (explaining that “[w]e have passed the point where [the Bureau] could even meet the current legislative requirement of December 31. We can’t do that anymore. We’ve passed that for quite a while now.”).
[6] At least six other cases in four other Districts have been filed challenging the Presidential Memorandum. See Compl., Common Cause v. Trump , No. 20-CV-2023 (D.D.C. July 23, 2020); Compl., Haitian-Ams. United, Inc. v. Trump , No. 20-CV-11421 (D. Mass. July 27, 2020); Compl., City of San Jose v. Trump , No. 20-CV-5167 (N.D. Cal. July 27, 2020); Compl., California v. Trump , No. 20-CV-5169 (N.D. Cal. July 28, 2020); Compl., Useche v. Trump , No. 20-CV-2225 (D. Md. July 31, 2020); Second Am. Compl., La Union Del Pueblo Entero v. Trump , No. 19-CV-2710 (D. Md. Aug. 13, 2020).
[7] Although Defendants do not dispute the facts in Plaintiffs’ declarations, they argue that
the declarations are “impermissibly conjectural, conclusory, and hearsay.” Defs.’ Mem.
12. Defendants are correct to point out that we “may consider affidavits and other materials
beyond the pleadings to resolve the jurisdictional issue,” but “may not rely on conclusory or
hearsay statements contained in the affidavits.”
New York v. U.S. Dep’t of Commerce
, 315 F.
Supp. 3d 766, 780 (S.D.N.Y. 2018) (internal quotation marks omitted). But Plaintiffs’
declarations are not conclusory insofar as they describe with concrete detail the specific
experience of various non-governmental and governmental entities. By way of example, several
NGO Plaintiffs give specific and concrete evidence of the ways in which their operations have
shifted to respond to the Memorandum.
See, e.g.
, ECF No. 76-18 (“Espinosa Decl.”), ¶ 14; ECF
No. 76-14 (“Choi Decl.”), ¶¶ 17, 20-21; ECF No. 76-26 (“Khalaf Decl.”), ¶ 15; ECF No. 76-36
(“Oshiro Decl.”), ¶ 12; ECF No. 76-47 (“Torres Decl.”), ¶¶ 22-23.
Furthermore, although the declarations do contain some inadmissible hearsay (e.g., where
they report information secondhand), Defendants are incorrect in suggesting that, without it, the
declarations are insufficient to support a showing that “the Presidential Memorandum would
have an appreciable effect on the participation of illegal aliens” in the census. Defs.’ Mem. 14-
15. Many of the statements in Plaintiffs’ declarations recount comments made by immigrants in
response to the Presidential Memorandum,
see, e.g.
, ECF No. 76-17 (“Cullinane Decl.”), ¶ 8;
ECF No. 149-3 (“Espinosa Supp. Decl.”), ¶ 5, which are admissible to prove state of mind,
see
Fed. R. Evid. 803(3). Additionally, references in the declarations to third-party statements are
admissible to demonstrate the effect that these statements had on others — for example, that
NGO Plaintiffs diverted resources in response to deterred census participation.
See, e.g.
,
United
States v. Reed
,
[8] Defendants fault Dr. Barreto for failing to consider a 2019 study conducted by the Census
Bureau, E LIZABETH A. P OEHLER ET AL ., U.S. C ENSUS B UREAU , 2019 C ENSUS T EST R EPORT : A N EW D ESIGN FOR THE 21 ST C ENTURY (Jan. 3, 2020), https://www2.census.gov/programs-
surveys/decennial/2020/program-management/census-tests/2019/2019-census-test-report.pdf
(“2019 Census Test Report”), which found “no statistically significant difference in overall self-
response rates” resulting from the inclusion of a citizenship question on the census questionnaire.
Id.
at ix;
see
Defs.’ Mem. 13. But that study, which is not directly relevant to the issues before
us, is less useful for Defendants than their arguments suggest, as there are findings that both
sides can and do point to in support of their positions. In fact, the same study did find
statistically significant drops in response rates “in some areas and for some subgroups,”
including “[t]racts with greater than 4.9 percent noncitizens,” “[t]racts with greater than 49.1
percent Hispanic residents,” “[t]racts with between 5.0-20.0 percent Asian residents,” and
“[h]ousing units within the Los Angeles Regional Census Center and New York Regional
Census Center boundaries.”
Id.
at ix-x. Furthermore, “the results of this [study] [we]re limited
to the self-response timeframe prior to the start of” Non-Response Follow-Up operations,
id.
at
12, and there is reason to believe that each of Non-Response Follow-Up’s steps would replicate
or exacerbate the effects of the net differential decline in self-response rates among noncitizen
households,
see New York v. Dep’t of Commerce
,
[9] That does not mean that, in every case, a State will have a “right” to such data — or a right to data of a certain quality — sufficient to support a valid cause of action to obtain it. But it
[10] Plaintiffs provide evidence of similar resource diversions by similarly situated organizations, albeit not Plaintiffs here. See Banerji Decl. ¶¶ 5-6; Matos Decl. ¶¶ 9-14; Sivongxay Decl. ¶¶ 16-20, 23-24; ECF No. 76-51 (“Aranda-Yanoc Decl.”), ¶ 8.
[11] Defendants do not argue that we should engage in a zone-of-interests analysis, which the
Supreme Court has sometimes described as a component of “prudential standing.”
Lexmark
Int’l
,
[12] In recent years, the Supreme Court has cast doubt on the “continuing vitality of the
prudential ripeness doctrine,” on that ground that it “‘is in some tension with . . . the principle
that a federal court’s obligation to hear and decide cases within its jurisdiction is virtually
unflagging.”
Susan B. Anthony List
,
[13] Although we are wary of relying too heavily on floor statements by members of Congress, it is worth noting that Senator Vandenberg of Michigan, the principal sponsor of the bill, reaffirmed that the legislation required the President “to report the result of a census” and to apply the reapportionment formula to “the result of the census.” 71 Cong. Rec. 1613 (1929) (statement of Sen. Vandenberg). Elsewhere, he and Senator Walsh of Montana confirmed in a colloquy with Senator Swanson of Virginia “that the President is bound and has no discretion” but “to make the apportionment according to the census .” Id. at 1845 (statement of Sen. Swanson) (emphasis added).
[14] The House Report to which DOJ cited noted unambiguously that “the enumerated decennial census population is the basis for the apportioning of [the House] among the several States.” H.R. Rep. No. 91-1314, at 3 (1970). Elsewhere, it summarized the three “elements” of the President’s statement under Section 2a(a): “(1) The population of each State as determined by the decennial census ; (2) The existing total number of Representatives (435); and (3) The apportionment which results from using a mathematical method known as the method of equal proportions.” Id. at 2 (emphasis added).
[16] Defendants argue that it is Plaintiffs’ burden to show “that there is
no
category of illegal
aliens that may be lawfully excluded from the apportionment,” Defs.’ Mem. 39, and suggest that
Plaintiffs cannot meet that burden because some categories of illegal aliens (e.g., aliens residing
in a detention facility after being arrested while crossing the border) can be lawfully excluded,
see id.
at 27. But the examples Defendants proffer are arguably excluded (or excludable) based
on their “usual residence,” not their legal status. In any event, Defendants cite no authority for
applying the standards for facial challenges to the constitutionality of statutes to claims, like
those here, that the President has exceeded the authority granted to him by Congress. Indeed,
that arguably gets it backwards: If the President goes outside the bounds of the authority granted
to him by Congress, a court’s power to grant relief should not depend on how far outside the
bounds he went. Notably, courts considering similar claims have not approached them in the
manner Defendants propose.
See, e.g.
,
Hawaii v. Trump
,
[17] For this reason, we need not and do not delve into the meaning of the terms “inhabitant” and “usual residence” at the time of the Founding or of the Reconstruction Amendments, or consider whether the concept of unlawful status was known to the Framers of Article I or the Fourteenth Amendment. There is no dispute that the concept of “illegal aliens” existed in 1929, when Section 2a was enacted. See Defs.’ Mem. 36.
[18] For what it’s worth, later Congresses took similar views. See FAIR v. Klutznick , 486 F. Supp. at 576-77 (three-judge court) (describing congressional debates); Stacy Robyn Harold, Note, The Right to Representation and the Census , 53 W AYNE L. R EV . 921, 923 & n.15 (2007) (collecting congressional debates); see also, e.g. , 1980 Census: Counting Illegal Aliens: Hearing on S. 2366 Before the Subcomm. on Energy, Nuclear Proliferation & Fed. Servs. of the S. Comm. on Governmental Affairs , 96th Cong. 12 (1980) (Senator Javits stating that the Constitution requires “the aggregate number of inhabitants, which includes aliens, legal and illegal”).
[20] Separately, there is an active debate over the propriety of “nationwide” or “universal”
injunctions.
See, e.g.
,
Dep’t of Homeland Sec. v. New York
,
[21] We believe that this matter was properly heard by a three-judge panel for the reasons set
forth in Judge Furman’s request to then-Chief Judge Katzmann for the appointment of such a
panel.
See
ECF No. 68. Nevertheless, mindful that the issue is not clear-cut and that the Second
Circuit has determined that it is jurisdictional,
see Kalson v. Paterson
,