Breaking: SCOTUS punts 6-3 on Trump effort to exclude illegals from apportionment

Second look at John Roberts? Naah, but the Chief Justice wound up on the conservatives’ side in punting this challenge to Donald Trump’s efforts to exclude illegal immigrants from reapportionment calculations. Roberts agreed that the complaint doesn’t demonstrate any particularized injury and may not be justiciable in the future either, while the court’s liberal wing wanted to swat this policy down immediately:


The U.S. Supreme Court dodged a ruling on whether President Trump can exclude undocumented immigrants from a key census count. The opinion said the case was “riddled with contingencies and speculation that impede judicial review.”

“At the end of the day, the standing and ripeness inquiries both lead to the conclusion that judicial resolution of this” case is “premature,” the justices wrote.

The decision leaves open the possibility for Trump to try to remove some undocumented immigrants from the key census count, but immigrant rights advocates warned Friday that they would sue.

“If the Administration actually tries to implement this policy, we’ll sue. Again. And we’ll win,” Dale Ho, director of the ACLU’s voting rights project, said on Twitter.

The per curiam decision relied on the tried and true punting material — standing and ripeness. And they have a point, considering that no one has actually implemented any policy yet from the Trump administration’s declared effort. In fact, as the decision notes, it’s still an open question whether it can be implemented at all, emphases in the original:

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 ___ (slip op., at 10); Department of Commerce v. United States House of Representatives, 525 U. S. 316, 331–332 (1999). The count here is complete; the present dispute involves the apportionment process, which remains at a preliminary stage. The Government’s eventual action will reflect both legal and practical constraints, making any prediction about future injury just that—a prediction.

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.

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 6–7. 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 decision-making 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).


There’s an air of unreality to this now, of course. When this lawsuit first got filed, it looked like Donald Trump had a good chance of winning a second term in office, which would have given him the opportunity to see this policy all the way through to its conclusion. Even at the time briefs were submitted in early October, those stakes were very much in play.

Now, however, the issue will be more or less moot. Trump will only have five more weeks in office, not nearly long enough to lock in this policy. Joe Biden will reverse it as soon as his Secretary of Commerce gets confirmed by the US Senate. This will be an academic footnote to the 2020 Census, unless states with fewer illegal aliens sue the Biden administration over any policy of inclusion. Clearly, the six members of the court aren’t interested in beating a dead horse here with a substantive ruling, and one can very easily see why, even apart from the pretty clear and convincing arguments on standing and ripeness.

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