Skip to main content

Liberal Wing of the Supreme Court Swipes at Majority for Ignoring ‘Unusually Straightforward’ Threat in Census Case


WASHINGTON, DC - AUGUST 04: U.S. President Donald Trump participates in the swearing in of General Charles Q. Brown as the incoming Chief of Staff of the Air Force, in the Oval Office of the White House, August 4, 2020 in Washington, DC. (Photo by Doug Mills-Pool/Getty Images)

The liberal wing of the United States Supreme Court was not pleased that the majority decided to punt on a challenge of President Donald Trump’s memo to exclude undocumented immigrants from the Census apportionment.

RELATED: Supreme Court’s Conservative Majority Gives Trump a Win for Now in Census Case — Here’s What It Means

The high court’s majority declined to weigh in on the merits on Friday, but handed President Trump a procedural win by vacating the judgment of a three-judge district court and kicking the case back down to that lower court “with instructions to dismiss for lack of jurisdiction.”

Three-judge district courts “shall be convened when […] an action is filed challenging the constitutionality of the apportionment of congressional districts or the apportionment of any statewide legislative body.” That’s what happened in this case. A three-judge district court in New York unanimously decided in September that President Trump’s attempt to exclude undocumented immigrants from the U.S. Census-based redistricting process was “unlawful.”

The court ruled that while there was “no dispute that the President has ‘accustomed supervisory powers over his executive officers’” and “thus retains some discretion in the conduct of the decennial census and resulting apportionment calculation,” President Trump did not act “within the boundaries” of the “authority that Congress has granted.” The court, therefore, declared the president’s memo unlawful:

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, 85 Fed. Reg. at 44,680. Because the President exceeded the authority granted to him by Congress by statute, we need not, and do not, reach the overlapping, albeit distinct, question of whether the Presidential Memorandum constitutes a violation of the Constitution itself.

But the quirks of the three-judge panel meant that a direct appeal to the Supreme Court was available to the Trump administration. The administration did just that, and the Supreme Court’s conservative majority threw out the lower court ruling on Friday on procedural grounds—while at the same time acknowledging that the case may at some time in the future be “suitable for adjudication.”

“At the end of the day, the standing and ripeness inquiries both lead to the conclusion that judicial resolution of this dispute is premature,” the unsigned per curiam opinion said. “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.”

Liberal Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan clearly did not agree that standing was not shown. Rather, they said the majority ignored a “threatened injury” that was “unusually straightforward”:

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 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 44680. Notwithstanding the “contingencies and speculation” that “riddl[e]” this case, ante, at 4 (opinion of the Court), the Government has not backed away from its stated aim to exclude aliens without lawful status from apportionment.


The implementation of the memorandum will therefore bring about the very “representational and funding injuries” that the plaintiffs seek to avoid. Brief for Appellees State of New York et al. 10.

The trio focused on the “modern apportionment scheme dat[ing] back to 1929,” noting that the language of that text says “whole number of persons in each State […] as ascertained under the […] decennial census.”

The text substituted by the first ellipsis was “excluding Indians not taxed.” The dissenting justices said it was telling that was the “one category of persons” the Congress excluded from the apportionment.

“Congress clearly knew how to exclude a certain population that would otherwise meet the traditional residency requirement when it wished to do so. Yet it did not single out aliens without lawful status in the 1929 Act,” the dissent went on.

The justices focused on this to argue that the text of the 1929 Act was “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,” Breyer wrote.

The dissent said that the majority’s punt had left untouched, for now anyway, a Trump memo that amounted to a “departure from settled law.” Worse yet, said the dissenting justices, the high court was an “open invitation” for the executive branch to use its discretion to “increase an electoral advantage”:

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.

In closing, Breyer, Kagan, and Sotomayor agreed that plaintiffs’ case was “meritorious” and that the three-judge district court’s ruling should have been affirmed.

The ACLU’s Dale Ho, who challenged the Trump memo along with New York Attorney General Letitia James (D), said in response to the Friday opinion that if the Trump administration “actually tries to implement this policy, we’ll sue. Again. And we’ll win.”

James said in a statement that “President Trump’s efforts to pick and choose who to include in the apportionment base of the census is as illegal today as it was when he made this announcement.”

“All today’s decision does is kick the can down the road until this lame-duck president knows whether he will receive the data he needs to violate the Constitution and the Census Act with the few weeks he has left in office. The law is clear — every person residing in the U.S. during the census, regardless of legal status, must be counted — and any further efforts by the president or his administration to violate the law will be met with fierce opposition, and we are confident we will win,” James said. “We will continue to do whatever is necessary to stop the president from putting politics above the law.”

[Image via Doug Mills/pool/Getty Images]

Have a tip we should know? [email protected]

Filed Under:

Follow Law&Crime:

Matt Naham is the Senior A.M. Editor of Law&Crime.