TRUMP, PRESIDENT OF THE UNITED STATES, et al. v. NEW YORK et al.
No. 20–366
Supreme Court of the United States
Argued November 30, 2020—Decided December 18, 2020
592 U. S. 125
TRUMP, PRESIDENT OF THE UNITED STATES, ET AL. v. NEW YORK ET AL.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
No. 20–366. Argued November 30, 2020—Decided December 18, 2020
The Constitution requires an “Enumeration” of the Nation’s population every ten years “in such Manner” as Congress “shall by Law direct.” Art. I, § 2, cl. 3. The resulting census numbers influence consequential national affairs. See Department of Commerce v. New York, 588 U. S. ___, ___. With the 2020 census count underway, President Trump issued a memorandum to the Secretary of Commerce stating the administration’s desire to exclude from the apportionment base of the 2020 census “aliens who are not in a lawful immigration status.” 85 Fed. Reg. 44680. The President directed the Secretary to include in the census report required by Congress under
Held: The Court lacks jurisdiction because standing has not been shown and the case is not ripe for the Court’s review. The administration has made plain its desire to exclude aliens without lawful status from the apportionment base. But the President qualified in the policy memorandum at issue that the Secretary should gather information “to the extent practicable” and that aliens should be excluded “to the extent feasible.” 85 Fed. Reg. 44680. How the Executive Branch might eventually try to implement this general statement of policy is “no more than conjecture” at this time, Los Angeles v. Lyons, 461 U. S. 95, 108, as is the feasibility of implementation. Plaintiffs concede that any chilling effect from the memorandum dissipated when the census response
485 F. Supp. 3d 422, vacated and remanded.
Acting Solicitor General Wall argued the cause for appellants. With him on the briefs were Acting Assistant Attorney General Clark, Hashim M. Mooppan, Sopan Joshi, and Nicole Frazer Reaves.
Barbara D. Underwood, Solicitor General of New York, argued the cause for government appellees. With her on the brief were Letitia James, Attorney General of New York, Steven C. Wu, Deputy Solicitor General, Judith N. Vale, Senior Assistant Solicitor General, Fiona J. Kaye, Assistant Attorney General, Matthew Colangelo, and Elena Goldstein, Philip J. Weiser, Attorney General of Colorado, William Tong, Attorney General of Connecticut, Kathleen Jennings, Attorney General of Delaware, Karl A. Racine,
Dale E. Ho argued the cause for private appellees. With him on the brief were Adriel J. Cepeda-Derieux, Davin Rosborough, Sophia Lin Lakin, Theresa J. Lee, Cecillia D. Wang, David D. Cole, Sarah Brannon, Ceridwen Cherry, John A. Freedman, Elisabeth S. Theodore, Perry Grossman, Christopher Dunn, Arthur N. Eisenberg, Andre I. Segurа, and Peter J. Eliasberg.*
*Briefs of amici curiae urging reversal were filed for the State of Alabama by Steve Marshall, Attorney General of Alabama, Edmund G. LaCour, Jr., Solicitor General, A. Barrett Bowdre, Deputy Solicitor General, and James W. Davis, Winfield J. Sinclair, and Brenton M. Smith, Assistant Attorneys General; for the State of Louisiana et al. by Jeff Landry, Attorney General of Louisiana, Elizabeth B. Murrill, Solicitor General, and Shae McPhee, Deputy Solicitor General, and by the Attorneys General for their respective jurisdiction as follows: Leslie Rutledge of Arkansas, Daniel Cameron of Kentucky, Lynn Fitch of Mississippi, Eric Schmitt of Missouri, Doug Peterson of Nebraska, Alan Wilson of South Carolina, Jason Ravnsborg of South Dakota, and Patrick Morrisey of West Virginia;
Briefs of amici curiae urging affirmance were filed for the United States House of Representatives by Douglas N. Letter, Megan Barbero, Lisa K. Helvin, David A. O’Neil, Joshua A. Geltzer, Mary B. McCord, Annie L. Owens, and Neal Kumar Katyal; for the State of California et al. by Xavier Becerra, Attorney General of California, Michael J. Mongan, Solicitor General, Aimee Feinberg and Joshua Patashnik, Deputy Solicitors General, Anthony R. Hakl, Supervising Deputy Attorney General, R. Matthew Wise, Gabrielle D. Boutin, and Kristin A. Liska, Deputy Attorneys General, Kimberly M. Castle, Associate Deputy Solicitor General, Marian M. Johnston, David I. Holtzman, Mike Feuer, Valerie Flores, Michael J. Dundas, Sue Ann Salmon Evans, and Keith A. Yeomans; for the City of San Jose, California, et al. by Richard P. Bress, Sadik Huseny, Kristen Clarke, Jon M. Greenbaum, and Ezra D. Rosenberg; for Businesses and Business Organizations by Stuart F. Delery, Joshua M. Wesneski, and Lee R. Crain; for Common Cause et al. by Gregory L. Diskant, Jonah M. Knobler, Peter A. Nelson, Emmet J. Bondurant, and Michael B. Kimberly; for Faith-Based and Immigrants’ Rights Organizations by Heather B. Repicky and Iván Espinoza-Madrigal; for Historians of the Census by Richard W. Clary, Antony L. Ryan, Helam Gebremariam, and Mark Trachtenberg; for the League of Women Voters of the United States et al. by Blaine I. Green and Kevin M. Fong; for Local Governments by James R. Williams, Greta S. Hansen, Raphael N. Rajendra, Jessica M. Scheller, Juan A. Gonzalez, Daniel N. Lopez, and Russell H. Roden; for Members of Congress by Elizabeth B. Wydra, Brianne J. Gorod, and David H. Gans; for the NAACP Legal Defense & Educational Fund, Inc., by Sherrilyn A. Ifill, Janai S. Nelson, Samuel Spital, Leah C. Aden, and Alan J. Stone; for the National Congress of American Indians by Daniel Lewerenz and John E. Echohawk; for the National School Boards Association et al. by Francisco M. Negrón, Jr., and Sonja H. Trainor; for the United States Conference of Catholic Bishops et al. by Stephen W. Miller; for Rep. Morris Jackson Brooks, Jr., et al. by Kris W. Kobach and John C. Eastman; for Michael L. Rosin by Peter K. Stris, Michael N. Donofrio,
TRUMP v. NEW YORK
No. 20–366
Supreme Court of the United States
Decided December 18, 2020
Every ten years, the Nation undertakes an “Enumeration” of its population “in such Manner” as Congress “shall by Law
Congress has given both the Secretary of Commerce and the President functions to perform in the enumeration and apportionment process. The Secretary must “take a decennial census of population . . . in such form and content as he may determine,”
This past July, the President issued a memorandum to the Secretary respecting the apportionment following the 2020 census. The memorandum announced a policy of excluding “from the apportionment base aliens who are not in a lawful
Bridget C. Asay, and Elizabeth R. Brannen; and for Ilya Somin et al. by Scott A. Eisman аnd Aaron R. Marcu.
Briefs of amici curiae were filed for the Fair Lines America Foundation, Inc., by Jason B. Torchinsky and Jonathan P. Lienhard; for LatinoJustice PRLDEF et al. by Celeste L. M. Koeleveld, Peter Mucchetti, Michaela Spero, and Juan Cartagena; for Kenneth Prewitt et al. by Brian A. Sutherland and David J. de Jesus; and for Andrew Reamer, Ph. D., by D. Hunter Smith.
This case arises from one of several challenges to the memorandum brought by various States, local governments, organizations, and individuals. A three-judge District Court held that the plaintiffs, aрpellees here, had standing to proceed in federal court because the memorandum was chilling aliens and their families from responding to the census, thereby degrading the quality of census data used to allocate federal funds and forcing some plaintiffs to divert resources to combat the chilling effect. 485 F. Supp. 3d 442, 449–453, (SDNY 2020) (per curiam). According to the District Court, the memorandum violates § 141(b) by ordering the Secretary to produce two sets of numbers—a valid tabulation derived from the census, and an invalid tabulation excluding aliens based on administrative records outside the census. Id., at 470. The District Court also ruled that the exclusion of aliens on the basis of legal status would contravene the requirement in § 2a(a) that the President state the “whole number of persons in each State” for purposes of apportionment. Id., at 476–477. The District Court declared the memorandum unlawful and enjoined the Secretary from including the information needed to implement the memorandum in his § 141(b) report to the President. Id., at 480–481. The Government appealed, and we postponed consideration of our jurisdiction. 592 U. S. ___ (2020).
Two related doctrines of justiciability—each originating in the case-or-controversy requirement of Article III—underlie this determination. See DaimlerChrysler Corp. v. Cuno, 547 U. S. 332, 352 (2006). First, a plaintiff must demonstrate standing, including “an injury that is concrete, particularized, and imminent rather than conjectural or hypothetical.” Carney v. Adams, 592 U. S. 53, 60 (2020) (internal quotation marks omitted). Second, the case must be “ripe”—not dependent on “contingent future events that may not occur as anticipated, or indeed may not occur at all.” Texas v. United States, 523 U. S. 296, 300 (1998) (internal quotation marks omitted).
At present, this case is riddled with contingencies and speculation that impede judicial review. The President, to be sure, has made clear his desire to exclude aliens without lawful status from the apportionment base. But the President qualified his directive by providing that the Secretary should gather information “to the extent practicable” and that aliens should be excluded “to the extent feasible.” 85 Fed. Reg. 44680. Any prediction how the Executive Branch might eventually implement this general statement of policy is “no more than conjecture” at this time. Los Angeles v. Lyons, 461 U. S. 95, 108 (1983).
While the plaintiffs agree that the dispute will take a more concrete shape once the Secretary delivers his report under § 141(b), Tr. of Oral Arg. 64, 75, they insist that the record already establishes a “substantial risk” of reduced representation and federal resources, Clapper v. Amnesty Int’l USA, 568 U. S. 398, 414, n. 5 (2013). That conclusion, however, involves a significant degree of guesswork. Unlike other pre-apportionment challenges, the Secretary has not altered census operations in a concrete manner that will predictably change the count. See, e. g., Department of Commerce v. New York, 588 U. S., at ___; Department of Commerce v. United States House of Representatives, 525 U. S. 316, 331–
Everyone agrees by now that the Government cannot feasibly implement the memorandum by excluding the estimated 10.5 million aliens without lawful status. Tr. of Oral Arg. 20, 63–64. Yet the only evidence speaking to the predicted change in apportionment unrealistically assumes that the President will exclude the entire undocumented population. App. 344, Decl. of Christopher Warshaw ¶11. Nothing in the record addresses the consequences of a partial implementation of the memorandum, much less supports the dissent’s speculation that excluding aliens in ICE detention will impact interstate apportionment. Post, at 139, 142 (opinion of Breyer, J.); see Reply Brief 6.
The impact on funding is no more certain. According to the Government, federal funds are tied to data derived from the census, but not necessarily to the apportionment counts addressed by the memorandum. Brief for Appellants 19–20. Under that view, changes to the Secretary’s § 141(b) report or to the President’s § 2a(a) statement will not inexorably have the direct effect on downstream access to funds or other resources predicted by the dissent. Post, at 139–140. How that question will be addressed by the Secretary and the President is yet another fundamental uncertainty impeding proper judicial consideration at this time.
The remedy crafted by the District Court underscores the contingent nature of the plaintiffs’ injuries. Its injunction prohibits the Secretary from informing the President in his § 141(b) report of the number of aliens without lawful status. In addition to implicating the President’s authority under the Opinions Clause, U. S. Const., Art. II, § 2, cl. 1, the injunction reveals that the source of any injury to the plaintiffs is the action that the Secretary or President might take in the future to exclude unspecified individuals from the apportionment base—not the policy itself “in the abstract,” Summers v. Earth Island Institute, 555 U. S. 488, 494 (2009). Letting the Executive Branch’s decisionmaking process run its course not only brings “more manageable proportions” to the scope of the parties’ dispute, Lujan v. National Wildlife Federation, 497 U. S. 871, 891 (1990), but also “ensures that we act as judges, and do not engage in policymaking properly left to elected representatives,” Hollingsworth v. Perry, 570 U. S. 693, 700 (2013). And in the meantime the plaintiffs suffer no concrete harm from the challenged policy itself, which does not require them “to do anything or to refrain from doing anything.” Ohio Forestry Assn., Inc. v. Sierra Club, 523 U. S. 726, 733 (1998).
At the end of the day, the standing and ripeness inquiries both lead to the conclusion that judicial resolution of this dispute is premature. Consistent with our determination that standing has not been shown and that the case is not ripe, we express no view on the merits of the constitutional and related statutory claims presented. We hold only that they are not suitable for adjudication at this time.
The judgment of the District Court is vacated, and the case is remanded with instructions to dismiss for lack of jurisdiction.
It is so ordered.
JUSTICE BREYER, with whom JUSTICE SOTOMAYOR and JUSTICE KAGAN join, dissenting.
The Constitution specifies that the number of Representatives afforded to each State is based on an apportionment of the total population, with each State receiving its proportional share. The Government has announced a policy to exclude aliens without lawful status from the apportionment base for the decennial census. The Government does not deny that, if carried out, the policy will harm the plaintiffs. Nor does it deny that it will implement that policy immi-
The Court disagrees. It argues that it is now uncertain just how fully the Secretary will implement the Presidential memorandum. In my view, that uncertainty does not warrant our waiting to decide the merits of the plaintiffs’ claim. It is true that challenges to apportionment have often come after the President has transmitted his tabulation to the House. See Brief for Appellants 16 (deeming as preferable “this Court’s normal approach: to decide such cases post-apportionment” (citing Utah v. Evans, 536 U. S. 452, 458–459 (2002), Wisconsin v. City of New York, 517 U. S. 1, 10–11 (1996), and Franklin v. Massachusetts, 505 U. S. 788, 790–791 (1992)))). The Government asked us to take that approach here. See Tr. of Oral Arg. 7–8. But we have also reached and resolved controversies concerning the decennial census based on a substantial risk of an anticipated apportionment harm. See Department of Commerce v. United States House of Representatives, 525 U. S. 316, 332 (1999) (holding that it is “not necessary for this Court to wait until the census has been conducted to consider” government conduct that may affect apportionment). And that is what I believe the Court should do here. Waiting to adjudicate plaintiffs’ claims until after the President submits his tabulation to Congress, as the Court seems to prefer, ante, at 131–132, risks needless and costly delays in apportionment. Because there is a “substantial likelihood that the [plaintiffs’] re-
I
The Court reasons that “standing has not been shown” because it is too soon to tell if the Government will act “in a manner substantially likely to harm any of the plaintiffs here.” Ante, at 132, 134. As I have said, I believe to the contrary. Plaintiffs have alleged a justiciable controversy, and that controversy is ripe for resolution.
A
Begin with the threatened injury. The plaintiffs allege two forms of future injury: a loss of representation in the apportionment count and decreased federal funding tied to the census totals. For an injury to satisfy Article III, it “must be concrete and particularized and actual or imminent, not conjectural or hypothetical.” Susan B. Anthony List v. Driehaus, 573 U. S. 149, 158 (2014) (quoting Lujan v. Defenders of Wildlife, 504 U. S. 555, 560 (1992); internal quotation marks omitted). We have long said that when plaintiffs “demonstrate a realistic danger of sustaining a direct injury as a result of [a policy’s] operation or enforcement,” they need “ ‘not have to await the consummation of threatened injury to obtain preventive relief. If the injury is certainly impending, that is enough.’ ” Babbitt v. Farm Workers, 442 U. S. 289, 298 (1979) (quoting Pennsylvania v. West Virginia, 262 U. S. 553, 593 (1923)).
Here, inquiry into the threatened injury is unusually straightforward. The harm is clear on the face of the policy. The title of the Presidential memorandum reads: “Excluding Illegal Aliens From the Apportionment Base Following the 2020 Census.” 85 Fed. Reg. 44679 (2020) (Presidential memorandum). That memorandum announces “the policy of the United States [shall be] to exclude from the apportionment
The implementation of the memorandum will therefore bring about the very “representational and funding injuries” that the plaintiffs seek to avoid. Brief for Appellee State of New York et al. 10.
B
Given the clarity of the Presidential memorandum, it is unsurprising the Government does not contest that plaintiffs
Whether viewed as a question of standing or ripeness, the Governmеnt’s arguments are insufficient. We have said that plaintiffs need not “demonstrate that it is literally certain that the harms they identify will come about” to establish standing. Clapper v. Amnesty Int’l USA, 568 U. S. 398, 414, n. 5 (2013). Rather, an “allegation of future injury may suffice if the threatened injury is ‘certainly impending,’ or there is a ‘ “substantial risk” that the harm will occur.’ ” Driehaus, 573 U. S., at 158 (quoting Clapper, 568 U. S., at 409, 414, n. 5). Looking to the facts here, the memorandum presents the “substantial risk” that our precedents require.
The Government’s current plans suggest it will be able to exclude a significant number of people under its policy. To
Of equal importance, plaintiffs argue that aside from apportionment itself, the exclusion of aliens without lawful status from the apportionment count will also negatively affect
Moreover, the statute says that “the President shall transmit to the Congress a statement showing the whole number of persons in each State . . . as ascertained under the . . . decennial census of the population.”
I do not agree with the Court that the lingering uncertainty over the Government’s plans renders this litigation unripe, nor that the apportionment process is at a “preliminary stage.” Ante, at 133. For one thing, the Government has spent over a year collecting the administrative records that will be used to fulfill the Presidential memorandum. See Exec. Order No. 13880, 84 Fed. Reg. 33823 (2019) (calling for federal departments to share administrative records so the Department of Commerce can “generate a more reliable count of the unauthorized alien pоpulation in the country . . . [and] an estimate of the aggregate number of aliens unlawfully present in each State”). For another, the Government has told us in related litigation that further delays in proceeding with apportionment beyond the statutory deadline would harm “the ability to meet contingent redistricting deadlines” in the States, because “ ‘delays would mean deadlines that are established in state constitutions or statutes will be impossible to meet.’ ” See Reply Brief in Ross v. National Urban League, O. T. 2020, No. 20A62, p. 11. Acting on that concern, we granted the Government’s stay pending appeal so as to hasten
To repeat, the President’s stated goal is to reduce the number of Representatives apportioned to the States that are home to a disproportionate number of aliens without lawful status. The Government has confirmed that it can identify millions of these people through administrative records. But if the Census Bureau fails to fulfill its mandate to exclude aliens without lawful status and reduce the number of
For these reasons, I believe that the plaintiffs have alleged a “substantial risk” that unlawfully subtracting aliens without lawful status from the tabulation of the total population that the President submits to Congress will inflict both apportionment and appropriations injuries on them. Those injuries are substantially likely to occur in the reasonably near future. This case squarely presents a concrete dispute and we should resolve it now.
II
On the merits, I agree with the three lower courts that have decided the issue, and I would hold the Government’s policy unlawful. See 485 F. Supp. 3d 422, 472–477 (SDNY 2020) (per curiam); San Jose v. Trump, 497 F. Supp. 3d 680, 734–743 (ND Cal. 2020); Useche v. Trump, No. 8:20–cv–02225 (D Md., Nov. 6, 2020), pp. 21–30. Once again, the memorandum calls for “the exclusion of illegal aliens from the apportionment base” that will be used for the “reapportionment of Representatives following the 2020 census,” and orders the Secretary of Commerce to transmit information permitting the President to carry out that policy. 85 Fed. Reg. 44680. The plaintiffs challenge that policy on both constitutional and statutory grounds, arguing that it contravenes the directives to report the “tabulation of total population by States . . . as required for the apportionment,”
A
First, we hаve the text. The modern apportionment scheme dates back to 1929. See 46 Stat. 21 (1929 Act). The relevant language provides that the apportionment base shall include “the whole number of persons in each State” “as ascertained under the . . . decennial census.” § 22, id., at 26 (codified at
Moreover, the statute (like the Constitution) explicitly excludes only one category of persons from the apportionment,
Second, historical practice leaves little doubt about the statute’s meaning. From the founding era until now, enumeration in the decennial census has always been concerned with residency, not immigration status. The very first Act setting forth the decennial census procedure stated that persons should be counted if they “ ‘usually resid[e] in the United States.’ ” Franklin, 505 U. S., at 804 (citing Act of Mar. 1, 1790, ch. 2, § 5, 1 Stat. 103). The 1820 decennial census included “foreigners not nationalized” among the schedule of whole number of persons to be tabulated within each State. See Act of March 14, 1820, 3 Stat. 550. The 1860 census included escaped slaves living in the North, although thоse persons were unlawfully present at that time. See San Jose, 497 F. Supp. 3d, at 693 (citing Record in No. 5:20–cv–5167, Doc. 64–22, pp. 5–7 (Decl. of Shannon D. Lankenau)). The 1920 census population count included a minor who had been denied lawful admission to the United States, but who was nonetheless paroled within the country during World War I until she could be sent home. See Record in No. 1:20–cv–5770, Doc. 149–2, Exh. 61, ¶3 (Decl. of Jennifer Mendelsohn) (discussing the inclusion of the minor petitioner in Kaplan v. Tod, 267 U. S. 228 (1925), in the census count). All told, at the time Congress wrote the 1929 Act, the United States had conducted more than a dozen decennial censuses. As the Government acknowledged below, none of them excluded residents solely because of immigration status. 485 F. Supp. 3d, at 476. Any contemporary understanding of the words “persons in each State” as ascertained under the “decennial census” would have reflected this longstanding and uniform practice. See
Third, the records from the legislative debate confirm that Congress was aware that the words of the statute bore this meaning. By 1929, federal immigration laws had been on the books for more than four decades, if not longer. See Kleindienst v. Mandel, 408 U. S. 753, 761 (1972). Some state laws for apportioning representatives explicitly excluded aliens, aware that an apportionment based simply on “the whole number of persons” under the federal decennial census would otherwise include them. See 71 Cong. Rec. 1977 (1929) (discussing a New York state statute that defined the apportionment base to include the number of “inhabitants, excluding aliens”). Time and again throughout the debate over what became the 1929 Act, members considered (and rejected) proposals that would have excluded aliens from the apportionment base. See, e. g., id., at 2065–2068, 2360, 2451–2455. The debates evince a shared understanding that without such an amendment, the Act would include those “aliens” present “without the consent of the American people.” Id., at 1919. See also id., at 1976 (Sen. Barkley) (discussing “unlawful immigrants” “who have no legal status”). This understanding was shaped not only by the ordinary meaning of the words, but also by legislators’ view of the meaning of those words as they appear in the Constitution.
In particular, Senator David A. Reed of Pennsylvania noted his support for the policy of excluding aliens without lawful status, but refrained from voting in favor of a proposal to do just that because he did not believe that the Constitution allowed it. Id., at 1958. See also id., at 1821–1822 (reprinting C. Turney, Power of Congress To Exclude Aliens From Enumeration for Purposes of Apportionment of Representatives (April 30, 1929)); 71 Cong. Rec. 2065–2066 (dis-
Fourth, the decades following the 1929 Act tell the same story. Just like every census that came before, no census since has excluded рeople based solely on immigration status. Instead, the census has continued to look to usual residence as the relevant criterion. At numerous points, the Executive Branch has reaffirmed its view that the law simply does not allow for the exclusion of aliens without lawful status who reside in the United States. See, e. g., 135 Cong. Rec. 22521 (1989) (printing Letter from C. Crawford, Assistant Attorney Gen., to Sen. Bingaman (Sept. 22, 1989)); Hearing before the Subcommittee on Energy, Nuclear Proliferation, and Government Processes of the Senate Committee on Governmental Affairs, Enumeration of Undocumented Aliens in the Decennial Census, 99th Cong., 1st Sess., 19 (1985) (“Traditional understanding of the Constitution and the legal direction provided by the Congress has meant that for every census since the first one in 1790, we have tried to count residents of the country, regardless of their status”) (statement of Census Bureau Director J. Keane); Federation for Am. Immigration Reform v. Klutznick, 486 F. Supp. 564, 576 (DC 1980) (“The Census Bureau has always attempted to count every person residing in a state on census day, and the population base for purposes of apportionment has always included all persons, including aliens both lawfully and unlawfully within our borders”). Thosе in the Legislative
The 2020 census, in fact, proceedеd along this course, at least until the Presidential memorandum. According to the Census Bureau’s regulations, the “enumeration procedures” for the 2020 census “are guided by the constitutional and statutory mandates to count all residents of the several states.” 83 Fed. Reg. 5526 (2018). In adopting the Rule, the Census Bureau considered a comment expressing concern over the inclusion of “undocumented people,” but adhered to its policy of counting all foreign citizens “if, at the time of the census, they are living and sleeping most of the time at a residence in the United States.” Id., at 5530. The Rule goes on to clarify that “[p]eople in federal detention centers on Census Day, such as . . . Immigration and Customs Enforcement (ICE) Service Processing Centers, and ICE contract detention facilities” will be “counted at the facility.” Id., at 5535. That Rule did not suggest that enu-
To summarize: The text of the 1929 Act is concerned with usual residence, not immigration status. The history, both before and after the legislation, has for decades been in accord with that straightforward interpretation. And all three branches of Government, when facing the exact question presented in this case, have uniformly arrived at the same result.
B
In the face of this evidence, the Government principally relies on scattered historic sources from the founding era, which it argues imbue the words of the statute with a more restrictive meaning. The Government’s argument relies on two assumptions. First, the Framers intended for the constitutional language “whole number of free persons” to be read as synonymous with the word “inhabitant,” a legal term of art the Government believes excludes those who are in the country in violation of the law. Second, when Congress carried forward the constitutional text into the 1929 Act, it understood those words to have that narrower meaning.
There are defects in both links of this chain. First, the argument is not convincing with respect to the widely accepted meaning of the Constitution, either in the founding era or at the time the Fourteenth Amendment was enacted. In Franklin, we understood the term “inhabitant” as comparable to the concept of “usual residency,” which, as the analysis above demonstrates, does not turn on immigration status. 505 U. S., at 804–805. The historical evidence put forward by the Government does not undermine that result.
Many of the Government’s sources simply show that the “usual residence” criterion has been applied to immigrants.
The Government’s argument for a narrower construction of “inhabitant” turns largely on Vattel’s founding-era treatise on the law of nations, which distinguishes between the “inhabitants” and “citizens” of a nation. Brief for Appellants 35–36 (citing 1 E. deVattel, The Law of Nations § 213, p. 92 (1760)). Even assuming that the Government offers the best reading of his work, and that this reading of Vattel informed the Framers’ understanding of that field, his treatise simply cannot bear the weight the Government puts on it. Vattel’s
Second, and more importantly for this case, the Framers’ intent is not our focus. Instead, the question is the meaning of the statute enacted in 1929. Even if the Government’s sources evince some ambiguity over the meaning of the Constitution’s census provisions in 1787 or 1868—a doubtful proposition—the historical record had resolved it by the time of the 1929 Act. There is simply no basis for thinking that when Congress enacted the statute that mirrored the constitutional language it was intending to depart so fundamentally from the procedures that had been consistently applied up to that point.
Apart from the historical evidence, the Government offers little more than its assertion that excluding aliens without lawful status makes good policy sense. As the memorandum reasons, “[e]xcluding . . . illegal aliens from the apportionment base is more consonant with the principles of representative democracy underpinning our system of Gov-
The Government is surely correct that the statute provides the President and the Secretary some degree of discretion in carrying out their statutory responsibilities. The concept of “usual residence” is an indeterminate one, which “has continued to hold broad connotations.” Franklin, 505 U. S., at 805. The exercise of that discretion may involve a number of judgment calls. How long must a person reside in a State before it can be presumed that she intends to remain? Should prisoners be counted in the State of their incarceration, or the State where they resided prior to, and where they intend to return following, their confinement? In resolving such issues, the Executive’s judgment has consistently been directed toward the meaning of “usual residence.” A policy that draws lines based on immigration status does no such thing. Most aliens without lawful status have lived exclusively in the United States for many years. See Krogstad, Passel, and Cohn, Pew Research Center, Five Facts About Illegal Immigration in the U. S. (2019). The Government does not suggest otherwise. Its own Residency Rule, which treated ICE detainees’ residenсy in the same manner as other federal prisoners, recognizes the lack of any logical relationship between immigration status and residence. Put simply, discretion to interpret and apply a statutory command is not a blank check to depart from it. That, I fear, is what the Government has tried to do here.
Thus, the touchstone for counting persons in the decennial census is their usual residence, not their immigration status. That alone is enough to resolve this case, because the memorandum seeks to exclude anywhere between tens of thousands and millions of persons from the census count based
III
It is worth considering the costs of the Presidential memorandum’s departure from settled law. The modern census emerged from periods of intense political conflict, whereby politicians sought to exploit census procedures to their advantage. See Evans, 536 U. S., at 497 (Thomas, J., concurring in part and dissenting in part); Department of Commerce v. Montana, 503 U. S. 442, 451–452, and n. 25 (1992). In enacting the 1929 Act, Congress sought to address that problem by using clear and broad language that would cabin discretion and remove opportunities for political gamesmanship. History shows that, all things considered, that approach has served us fairly well. Departing from the text is an open invitation to use discretion to increase an electoral advantage. This produces the hostility that the 1929 Congress sought to resolve.
Because I believe plaintiffs’ claims are justiciable, ripe for review, and meritorious, I would affirm the lower court’s holding. I respectfully dissent.