DONALD J. TRUMP, PRESIDENT OF THE UNITED STATES, et al., APPELLANTS v. NEW YORK, et al.
On Appeal From The United States District Court For The Southern District Of New York
December 18, 2020
Every ten years, the Nation undertakes an “Enumeration” of its population “in such Manner” as Congress “shall by Law direct.” U. S. Const., Art. I, §2, cl. 3. This census plays a critical role in apportioning Members of the House of Representatives among the States, allocating federal funds to the States, providing information for intrastate redistricting, and supplying data for numerous initiatives conducted by governmental entities, businesses, and academic researchers. Department of Commerce v. New York, 588 U. S. ___, ___ (2019) (slip op., at 2).
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,” 13 U. S. C. §141(a), and then must report to the President “[t]he tabulation of total population by States” under the census “as required for the apportionment,” §141(b). The President in turn must transmit to Congress a “statement showing the whole number of persons in each State, excluding Indians not taxed, as ascertained” under the census. 46 Stat. 26, 2 U. S. C. §2a(a). In that statement, the President must apply a mathematical formula called the “method of equal proportions” to the population counts in order to calculate the number of House seats for each State. Ibid.; see Department of Commerce v. Montana, 503 U. S. 442, 451–452 (1992).
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 immigration status.” 85 Fed. Reg. 44680 (2020). To facilitate implementation “to the maximum extent feasible and consistent with the discretion delegated to the executive branch,” the President ordered the Secretary, in preparing his §141(b) report, “to provide information permitting the President, to the extent practicable, to exercise the President’s discretion to carry out the policy.” Ibid. The President directed the Secretary to include such information in addition to a tabulation of population according to the criteria promulgated by the Census Bureau for counting each State’s residents. Ibid.; see 83 Fed. Reg. 5525 (2018).
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, appellees 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. ___ F. Supp. 3d ___, ___–___, 2020 WL 5422959, *13–*15 (SDNY, Sept. 10, 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 ___, 2020 WL 5422959, *27. 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 ___, 2020 WL 5422959, *32. 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 ___, 2020 WL 5422959, *35. The Government appealed, and we postponed consideration of our jurisdiction. 592 U. S. ___ (2020).
A foundational principle of Article III is that “an actual controversy must exist not only at the time the complaint is filed, but through all stages of the litigation.” Already, LLC v. Nike, Inc., 568 U. S. 85, 90–91 (2013) (internal quotation marks omitted). As the plaintiffs concede, any chilling effect from the memorandum dissipated upon the conclusion of the census response period. The plaintiffs now seek to substitute an alternative theory of a “legally cognizable injury” premised on the threatened impact of an unlawful apportionment on congressional representation and federal funding. Id., at 100. As the case comes to us, however, we conclude that it does not—at this time—present a dispute “appropriately resolved through the judicial process.” Susan B. Anthony List v. Driehaus, 573 U. S. 149, 157 (2014) (internal quotation marks omitted).
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, ante, at 6 (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).
To begin with, the policy may not prove feasible to implement in any manner whatsoever, let alone in a manner substantially likely to harm any of the plaintiffs here. Pre-apportionment litigation always “presents a moving target” because the Secretary may make (and the President may direct) changes to the census up until the President transmits his statement to the House. Franklin v. Massachusetts, 505 U. S. 788, 797–798 (1992). And as the Government recognizes, Tr. of Oral Arg. 39, any such changes must comply with the constitutional requirement of an “actual Enumeration” of the persons in each State, as opposed to a conjectural estimate. See Utah v. Evans, 536 U. S. 452, 475–476 (2002); see also 13 U. S. C. §195. Here the record is silent on which (and how many) aliens have administrative records that would allow the Secretary to avoid impermissible estimation, and whether the Census Bureau can even match the records in its possession to census data in a timely manner. See Reply Brief 4–5. Uncertainty likewise pervades which (and how many) aliens the President will exclude from the census if the Secretary manages to gather and match suitable administrative records. We simply do not know whether and to what extent the President might direct the Secretary to “reform the census” to implement his general policy with respect to apportionment. Franklin, 505 U. S., at 798.
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. Post, at 5– 6, 9 (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 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 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.