The Supreme Court heard oral argument today in Trump v. New York, a case that raises lots of interesting questions concerning the ongoing effort by the Trump administration to complete the decennial “actual Enumeration” of the population that will then be used to re-apportion among the states the seats in the House of Representatives. At issue in particular is President Trump’s memorandum from July in which he directed the Secretary of Commerce to exclude illegal aliens from the apportionment base “to the maximum extent feasible and consistent with the discretion delegated to the executive branch.” The plaintiffs in the case are 20-something States, other governmental entities, and immigration-rights groups.
Interesting as various of the questions are, the case seems to me easily and properly resolved on the same ground of lack of ripeness on which a three-judge district court last week dismissed the very similar complaint by Common Cause and other plaintiffs. As D.C. Circuit judge Gregory Katsas wrote in his majority opinion in that case:
A significant contingency plagues this case right now: We do not know which aliens the Secretary will propose excluding from the apportionment base, much less which aliens the President ultimately will exclude. The memorandum announces a general policy to exclude illegal aliens, but only “to the maximum extent feasible and consistent with the discretion delegated to the executive branch.” It then reiterates that the policy warrants exclusion only “to the extent feasible and to the maximum extent of the President’s discretion under the law.” It orders the Secretary to take “appropriate action, consistent with the Constitution and other applicable law,” providing information permitting the President to carry out the policy “to the extent practicable.” And it ends with a general instruction that “[t]his memorandum shall be implemented consistent with applicable law.” We cannot ignore these repeated and unambiguous qualifiers imposing lawfulness and feasibility constraints on implementing the memorandum.
As was evident from today’s oral argument, at this point we have no idea how the Secretary of Commerce and the President will apply these “lawfulness and feasibility constraints.” As to lawfulness: Which categories of illegal aliens will the Secretary and/or the President determine to be lawfully excludable from the enumeration? The 50,000 held in ICE detention facilities? The 188,000 subject to final orders of removal? The 3.2 million on ICE’s non-detained docket? All 10.5 million?
As the United States explained in its reply brief, the feasibility question also presents “various unknowable contingencies”:
To feasibly exclude illegal aliens under the Memorandum, the Secretary must be able to match individual persons identified through census questionnaires and field-data collection with individual persons identifiable through administrative records as illegal aliens as of April 1, 2020 (census day). This Office is informed by the Census Bureau’s experts that (1) the Bureau is still processing data and compiling the master Census Unedited File; (2) the Bureau is still gathering administrative records pertaining to immigration status; and (3) the Bureau is still developing procedures, in conjunction with other agencies, to compare the data sets to identify and match individual illegal aliens. Until that comparison is performed later in December or January, the Bureau cannot predict or even estimate the results, which depend on (1) how many illegal aliens were counted as a result of questionnaire responses and field-data collection; (2) how many of them are identified in administrative records possessed by the Bureau; and (3) whether sufficient personal information is contained in the census data and administrative records to identify and match individual illegal aliens.
Some questions at oral argument seemed to suppose that the existence of extensive records on various categories of illegal aliens means that the matching process somehow ought to be doable in the thirty-one days that remain before the year-end statutory deadline. But beyond the illegal aliens held in detention facilities, that is highly doubtful. It’s one thing, for example, to know that there are roughly 3.2 million aliens on ICE’s non-detained docket. It’s quite another thing to match up those aliens with particular census responders, especially when they might not have responded to the census or might have omitted their real names or other personally identifying information. How could anyone guess how many such matches could be made, and in which states, in the coming weeks (if, that is, this category of aliens was determined to be lawfully excludable from the apportionment base)?
For much the same reasons that this matter isn’t ripe for resolution, the Court might alternatively determine that plaintiffs have failed to establish standing. Which of the plaintiff States, for example, could make any remotely plausible showing that it is likely to lose a seat in the House of Representatives as a result of the Administration’s unknowable determinations on lawfulness and feasibility?